Constitutional and Administrative Law and EU Law Manual

CONSTITUTIONAL AND
ADMINISTRATIVE LAW
AND EU LAW
CONSTITUTIONAL AND
ADMINISTRATIVE LAW
AND EU LAW
Trevor Tayleur
Published by
The University of Law,
2 Bunhill Row
London EC1Y 8HQ
© The University of Law 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, without the prior written permission of the copyright holder, application for which
should be addressed to the publisher.
Contains public sector information licensed under the Open Government Licence v3.0
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 914219 05 4
Preface
This book is part of a series of Study Manuals that have been specially designed
to support the reader to achieve the SQE1 Assessment Specification in relation to
Functioning Legal Knowledge. Each Study Manual aims to provide the reader with
a solid knowledge and understanding of fundamental legal principles and rules,
including how those principles and rules might be applied in practice.
This Study Manual covers the Solicitors Regulation Authority’s syllabus for the SQE1
assessment for Constitutional and Administrative Law and EU Law in a concise
and tightly focused manner. The Manual provides a clear statement of relevant
legal rules and a well-defined road map through examinable law and practice.
The Manual aims to bring the law and practice to life through the use of example
scenarios based on realistic client-based problems and allows the reader to test their
knowledge and understanding through single best answer questions that have been
modelled on the SRA’s sample assessment questions.
For those readers who are students at the University of Law, the Study Manual is
used alongside other learning resources and the University’s assessment bank to
best prepare students not only for the SQE1 assessments, but also for a future life in
professional legal practice.
We hope that you find the Study Manual supportive of your preparation for SQE1 and
we wish you every success.
The legal principles and rules contained within this Manual are stated as at
1 October 2020.
Author acknowledgments
Trevor would like to thank Savvas Michael for reviewing and commenting on the
content of chapters and sample questions and Nancy Duffield and Gary Atkinson for
their source materials; their input was invaluable. Thanks must also go to David Stott
for his editorial support and guidance.
Contents
Prefacev
Table of Cases xv
Table of Statutesxxi
Chapter 1 Constitutional Fundamentals and Sources of the Constitution 1

SQE1 syllabus 1
Learning outcomes 1
1.1 What is a constitution? 2
1.2 Classifying constitutions 2
1.2.1 Written/unwritten 2
1.2.2 Republican/monarchical 2
1.2.3 Federal/unitary 2
1.2.4 Rigid/flexible 3
1.2.5 Formal separation of powers/informal separation of powers 3
1.3 Core constitutional principles 3
1.3.1 The rule of law 3
1.3.2 The separation of powers 4
1.3.3 The sovereignty of Parliament 4
1.4 Sources of the UK constitution 4
1.4.1 Acts of Parliament 5
1.4.2 Case law 6
1.4.3 The royal prerogative 7
1.4.4 Constitutional conventions 9
1.4.5 Other sources of the constitution 12
Summary 12
Sample questions 13
Chapter 2 Parliament and Parliamentary Sovereignty 15
SQE1 syllabus 15
Learning outcomes 15
2.1 Parliament 16
2.2 The composition of Parliament 16
2.2.1 The House of Commons 16
2.2.2 The House of Lords 16
2.2.3 The meeting and duration of Parliament 17
2.3 The legislative process 17
2.3.1 Public bills 19
2.3.2 Private bills 19
Contents
2.3.3 The relationship between the House of Commons and

the House of Lords 19
2.3.4 The Parliament Acts 1911 and 1949 20
2.3.5 Delegated legislation 20
2.4 The sovereignty (or supremacy) of Parliament 21
2.4.1 Definition of parliamentary sovereignty 21
2.4.2 The development of parliamentary sovereignty 21
2.4.3 The ‘Enrolled Act’ rule 21
2.4.4 The unlimited legislative competence of Parliament 22
2.4.5 Express and implied repeal of statute 23
2.5 Limitations on the supremacy of Parliament 24
2.5.1 Domestic limitations 24
2.5.2 European limitations 29
2.5.3 Membership of the European Union 29
2.5.4 Incorporation of the ECHR into domestic law 33
2.5.5 Method of incorporation 33
2.5.6 Impact of the Human Rights Act on parliamentary sovereignty 34
2.6 Parliamentary privilege 36
2.6.1 Freedom of speech 36
2.6.2 The right to control its own composition and procedures –
‘exclusive cognisance’ 37
2.6.3 Recent developments 38
Summary 38
Sample questions 40
Chapter 3 Devolution 43
SQE1 syllabus 43
3.1 The United Kingdom 44
3.1.1 Scotland 44
3.1.2 Wales 44
3.1.3 Northern Ireland 44
3.2 Devolution 45
3.3 Scotland 45
3.3.1 The Scottish Parliament 46
3.3.2 Devolved matters 46
3.3.3 The Scottish Government 47
3.3.4 The Sewel Convention 47
3.4 Wales 48
3.4.1 Senedd Cymru/Welsh Parliament 49
3.4.2 The Welsh Government 50
3.4.3 The Sewel Convention 50
viii
Contents
3.5 Northern Ireland 50

3.5.1 The Good Friday Agreement 50
3.5.2 The Northern Ireland Assembly 50
3.5.3 Northern Ireland Executive 51
3.6 The role of the Supreme Court 52
3.6.1 Referring a bill to the Supreme Court 52
3.6.2 Appeals/references from higher/appellate courts 53
3.7 Relationships between the UK Government and the devolved
administrations54
3.7.1 The Joint Ministerial Committee 54
3.7.2 Sub-committees of the JMC 54
Summary 55
Sample questions 55
Chapter 4 Legitimacy, Separation of Powers and the Rule of Law 59
SQE1 syllabus 59
4.1 Legitimacy 60
4.2 The rule of law 60
4.2.1 The ‘traditional’ definition of the rule of law 60
4.2.2 The importance of the rule of law 61
4.2.3 Modern interpretations of the rule of law 62
4.2.4 The contemporary relevance of the rule of law 62
4.3 The separation of powers 65
4.3.1 Development of the doctrine 65
4.3.2 The United States of America –the ‘Model’ 66
4.3.3 Separation of powers in the UK constitution? 66
4.3.4 The relationship between the executive and the legislature 67
4.4 The relationship between the executive and the judiciary 72
4.4.1 The importance of judicial independence 72
4.4.2 Judicial independence from the executive 72
4.4.3 The Constitutional Reform Act 2005 73
4.4.4 The relationship between the legislature and the judiciary 77
Summary 79
Sample questions 81
Chapter 5 Public Order Law 85
SQE1 syllabus 85
5.1 Approach of English law to public order 86
5.2 Processions 87
5.2.1 Advance notice 87
5.2.2 Qualifications and exemptions 87
ix
Contents
5.2.3 Offences 88
5.2.4 Imposing conditions on public processions 88
5.2.5 Offences under s 12 89
5.2.6 The power to prohibit processions 89
5.3 Meetings 90
5.3.1 Meetings: permission sometimes required 90
5.3.2 Imposing conditions on public assemblies 91
5.3.4 Trespassory assemblies 92
5.4 The common law: breach of the peace 93
Summary 95
Sample questions 97
Chapter 6 The Grounds of Judicial Review 101
SQE1 syllabus 101
6.1 Introduction to judicial review and the grounds of claim 102
6.2 What is judicial review? 103
6.3 Judicial review and fundamental principles of the UK constitution 104
6.3.1 The rule of law 104
6.3.2 The separation of powers 104
6.3.3 Parliamentary sovereignty 104
6.4 Identifying the grounds of review 105
6.5 Illegality as grounds for review 106
6.5.1 How might illegality occur? 106
6.6 Irrationality 113
6.6.1 The ‘Wednesbury Principle’ 113
6.6.2 Developments post-Wednesbury 113
6.7 The procedural grounds of judicial review 114
6.7.1 Procedural fairness –the rules of natural justice 115
6.8 Procedural ultra vires 123
6.8.1 ‘Mandatory’ or ‘directory’ requirements 123
6.8.2 Subsequent developments 124
6.9 Legitimate expectations 124
Summary 126
Sample questions 128
Chapter 7 Judicial Review –Procedure and Remedies 131
SQE1 syllabus 131
x
Contents
7.1 Introduction to procedure and remedies 132

7.2 Is judicial review the appropriate procedure to use? 133
7.2.1 Public law v private law –the principle of ‘procedural exclusivity’ 133
7.2.2 Cases involving both a public law and a private law element 134
7.3 Identity of the decision-maker 135
7.4. Standing in claims for judicial review 136
7.4.1 The requirement of ‘sufficient interest’ 136
7.4.2 Pressure groups and judicial review proceedings 136
7.5 Making a claim for judicial review 137
7.5.1 The Administrative Court 137
7.5.2 Time limits 138
7.6 Exclusion of the courts’ judicial review jurisdiction 139
7.6.1 Ouster clauses 139
7.6.2 Full ouster clauses 139
7.6.3 Partial ouster clauses 140
7.6.4 Other statutory remedies 141
7.7 Procedure for bringing a judicial review claim 141
7.7.1 Outline of procedure 141
7.7.2 Stage 1: the permission stage 141
7.7.3 Stage 2: the hearing of the claim for judicial review 141
7.8 Remedies in judicial review 142
7.8.1 Public law remedies –the ‘prerogative orders’ 143
7.8.2 Private law remedies –the ‘non-prerogative orders’ 143
Summary 145
Chapter 8 The European Convention on Human Rights 151
SQE1 syllabus 151
8.1 Introduction to the ECHR and the HRA 152
8.2 Background to the ECHR 152
8.3 Procedure 153
8.3.1 Types of proceedings 153
8.3.2 Two-stage process 153
8.4 Absolute, limited and qualified rights 154
8.5 Qualified rights 156
8.5.1 Qualifications must be express 156
8.5.2 Qualifications must be prescribed by law (or be ‘in
accordance with the law’) 156
8.5.3 Legitimate aims 157
8.5.4 Necessary in a democratic society 157
xi
Contents
8.6 Derogations 158

8.7 Rights under the European Convention on Human Rights 158
8.7.1 Article 2 –Right to life 158
8.7.2 Scope of Article 2 159
8.8 Article 3 –Torture, inhuman or degrading treatment or punishment 160
8.8.1 Scope of Article 3 160
8.8.2 Deportation cases 161
8.9 Article 4 –Slavery 162
8.9.1 Introduction 162
8.9.2 Slavery 162
8.9.3 Servitude 162
8.9.4 Forced or compulsory labour 162
8.10 Article 5 –Right to liberty and security 163
8.10.2 The meaning of deprivation of liberty 163
8.10.3 When may the state lawfully deprive an individual
of their liberty? 165
8.11 Article 6 –Right to a fair trial 166
8.11.2 Civil rights and obligations 166
8.11.3 Criminal charges 167
8.11.4 Articles 6(2) and 6(3) 167
8.11.5 Article 6(1) and criminal cases 168
8.11.6 Article 6(2) –The presumption of innocence 170
8.11.7 Additional rights of the defendant in criminal proceedings 171
8.12 Retrospective crimes 172
8.13 Absolute and limited rights: conclusion 172
8.14.2 The proportionality test 173
8.15 Article 8 –Right to respect for private and family life 174
8.15.2 Article 8 and deportation, removal and extradition 175
8.16 Article 9 –Freedom of thought, conscience and religion 176
8.16.2 Restrictions 177
8.17 Article 10 –Freedom of expression 179
8.17.2 Qualifications 179
8.17.3 Ban on political advertising 179
8.17.4 Hate speech 180
xii
Contents
8.18 Article 11 –Freedom of assembly and association 181

8.18.1 Freedom of assembly 181
8.18.2 Freedom of association 181
8.19 Article 12 – The right to marry 183
8.19.1 Scope 183
8.19.2 Restrictions to this right 183
8.20 Article 13 –The right to an effective remedy 183
8.21 Article 14 –Protection from discrimination 183
8.22 Article 1 of the First Protocol –Protection of property 183
8.22.2 Restrictions 184
8.23 Article 2 of the First Protocol –The right to education 184
8.22.2 Exclusions 184
8.24 Article 3 of the First Protocol –The right to free elections 185
8.25 Article 1 of Protocol 13 –Abolition of the death penalty 185
Summary 185
Chapter 9 Human Rights Act 1998: European Convention on Human Rights
in the UK 189
SQE1 syllabus 189
9.1 The Human Rights Act 1998 190
9.1.1 An overview of the act 190
9.1.2 Method of incorporation of Convention rights and
interpretation of domestic legislation 190
9.1.3 Declaration of incompatibility 190
9.1.4 Remedial orders 191
9.1.5 Acts of public authorities 191
9.1.6 Enforcement against private individuals 191
9.1.7 Section 6 and delegated legislation 192
9.1.8 Standing 192
9.1.9 Damages for breach of Convention rights 192
9.2 Convention rights in the UK 192
9.2.1 Enforcement against public bodies 192
9.2.2 Private enforcement 194
9.3 ‘Horizontal effect’ of Convention rights 195
9.4 Conflict between different rights and freedoms 195
9.4.1 Balancing freedom of expression with right to
respect for private life 196
xiii
Contents
Summary 200
Chapter 10 Retained EU Law 205
SQE1 syllabus 205
10.1 Introduction to retained EU law 206
10.2 What is retained EU law? 206
10.2.1 EU-derived domestic legislation 207
10.2.2 Direct EU legislation 207
10.2.3 Rights etc arising under s 2(1) of the ECA 1972 208
10.3 Status of retained EU law 209
10.4 Interpretation of retained EU law 210
10.5 Retained EU case law 210
10.6 Retained general principles of EU law 211
10.7 Exclusion of state liability 212
10.8 Correcting ‘deficiencies’ in retained EU law 212
10.9 Supremacy of retained EU law 213
10.10 Challenges to retained EU law 213
10.11 The Withdrawal Agreement 214
Summary 215
Index219
xiv
Table of Cases
A A and others v Secretary of State for the Home Department [2005]

2 AC 68 35, 63, 158, 192
A v United Kingdom (1999) 27 EHRR 611 160
Ali v United Kingdom (2011) ECHR 17 184
Animal Defenders v United Kingdom [2013] ECHR 362 179
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 111, 139
Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223 113, 114, 126
Attorney General for New South Wales v Trethowan [1932] AC 526 27
Attorney General v De Keyser’s Royal Hotel [1920] AC 508 8
Austin & Others v The United Kingdom [2012] ECHR 459 95
Austin v Commissioner of the Police of the Metropolis [2009] UKHL 95
Austin v UK (2012) 55 EHRR 14 165
AXA General Insurance v Lord Advocate [2011] UKSC 46 53
B B v United Kingdom (2004) 39 EHRR SE19 183

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 173
Bates v Lord Hailsham [1972] 1 WLR 1373 122
BBC v Johns [1965] Ch 3 75
Benkharbouche v Secretary of State for Foreign and Commonwealth
Affairs [2017] UKSC 62 211
Blackburn v Attorney General [1971] 2 All ER 1380 76, 83
Board of Education v Rice [1911] AC 179 117
Boddington v British Transport Police [1998] 2 WLR 639 134, 135
Bradbury v London Borough of Enfield [1967] 1 WLR 1311 123
British Oxygen v Minister of Technology [1971] AC 610 108, 111
Burmah Oil Company v Lord Advocate [1965] AC 75 23, 78
C Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 197

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 12, 107
Carr v News Group Newspapers Ltd [2005] EWHC 971 (QB) 196
Case of Proclamations (1611) 12 Co Rep 74 75
CCSU v Minister for Civil Service [1984] UKHL 9 76, 105, 113, 114
Chahal v United Kingdom (1997) 23 EHRR 413 161
Chapin and Charpentier v France [2016] ECHR 504 183
Cheney v Conn [1968] 1 All ER 779 22, 39
Church of Scientology v Johnson-Smith [1972] 1 All ER 37 37
Coney v Choyce [1975] 1 All ER 979 123
Congreve v Home Office [1976] 1 QB 629 108, 111, 114, 194
D Da Silva v United Kingdom (2016) 63 EHRR 12 160

Defrenne v SABENA (Case 43/75) ECLI:EU:C:1976:56, [1976] ECR 455 30
Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301 115, 127
DPP v Jones [1999] UKHL 5 93
Duncan v Jones [1936] 1 KB 218 94
Table of Cases
E Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710 21

Ellen Street Estates v Minister of Health [1934] KB 590 23
Engel v The Netherlands (1979–80) 1 EHRR 647 167
Entick v Carrington (1765) 19 St Tr 1030 6, 61
Evans v UK (2006) 4 EHRLR 485–88 159
Eweida and others v United Kingdom (2013) 57 EHRR 8 177
F F (In Utero) (Wardship), Re [1988] 2 FLR 307 159

Fairmount Investments Ltd v Secretary of State for the Environment [1976]
1 WLR 1255 115, 120
Ferdinand v MGN Ltd [2011] EWHC 2454 (QB) 200
Finn-Kelcey v Milton Keynes Borough Council and MK Windfarm Ltd [2008]
EWCA Civ 1067 138
Francovich v Italian Republic (Cases C-6/90 and 9/90) ECLI:EU:C:1991:428,
[1991] ECR I-5357 32, 212
G Georgia v Russia I (Application No 13255/07) 153

Georgia v Russia II (Application No 38263/08) 153
Ghaidan v Godin-Mendoza [2004] 2 AC 557 34
Goodwin v United Kingdom (2002) 35 EHRR 18 183
Guzzardi v Italy ( 1980) 3 EHRR 333 164
H H v Lord Advocate [2012] UKSC 24 26

Hardy v Pembrokeshire CC [2006] EWCA Civ 240 138
Hirst v UK (No 2) (2005) ECHR 681 185
Hirst v United Kingdom (No 2) [2005] ECHR 681 36
HM Lord Advocate v Martin [2010] UKSC 10 53
Huang v Secretary of State for the Home Department [2007] UKHL 11 172
Hubbard v Pitt [1976] 1 QB 142 86
I Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UKSC 61 53

Ireland v United Kingdom (1979–1980) 2 EHRR 25 160
J Jersild v Denmark (1995) 19 EHRR 1 180
K Kay v Commissioner of Police of the Metropolis [2008] UKHL 69 87

Kent v Metropolitan Police Commissioner (1981) (The Times, 15 May) 89
Khan v United Kingdom (2000) 31 EHRR 45 169
Kücükdeveci v Swedex GmbH & Co KG, EU:C:2010:21, [2010]
ECR I-00365 211
L Lavender & Sons Ltd v Minister of Housing and Local Government

[1970] 1 WLR 1231 107
Lewis v Heffer [1978] 1 WLR 1061 120
Lloyd v McMahon [1987] AC 625 122
LNS v Persons Unknown [2010] EWHC 119 (QB) 199
xvi
Table of Cases
M M v Home Office [1993] UKHL 5 64

MacCormick v Lord Advocate 1953 (Scot) SC 396 24
Madzimbamuto v Lardner-Burke [1969] 1 AC 645 22
Malone v UK (1984) 7 EHRR 14 157
Mandalia v Home Secretary [2015] UKSC 59 119
Marbury v Madison 5 U.S. (1 Cranch) 137 (1803) 66
Marleasing SA v La Comercial Internacional de Alimentacion SA
(Case C-106/89) EU:C:1990:395, [1990] ECR I-4315 210
Mary Bell (X (A Woman formerly known as Mary Bell) and Y v Stephen
O’Brien and News Group Newspapers and MGN Limited)
[2003] EWHC 1101 (QB) 195
MB (Medical Treatment), Re [1997] 2 FLR 426 159
McCann v United Kingdom (1996) 21 EHRR 97 159
McInnes v Onslow-Fane [1978] 1 WLR 1520 117, 119, 120, 127, 129
Moohan v Lord Advocate [2014] UKSC 67  8
Mosley v News Group Newspapers [2008] EWHC 1777 (QB) 199
Moss v McLachlin [1985] IRLR 76 94, 95
Murray (by his Litigation Friends) v Express Newspapers plc and
another [2008] EWCA Civ 446, [2009] Ch 48 199
Murray v United Kingdom (1996) 22 EHRR 29 171
Mussele v Belgium (1984) 6 EHRR 163 162
N Norwood v United Kingdom (Admissibility) (23131/03) (2005) 40 EHRR SE11 180
O Observer and The Guardian v United Kingdom (1992) 14 EHRR 153 179
O’Reilly v Mackman [1983] 2 AC 2370 133, 135
Osman v United Kingdom [1997] 1 FLR 193 158
P Padfield v Minister of Agriculture [1968] AC 997 109, 110–11, 194

Peck v United Kingdom (2003) 36 EHRR 41 174
Pepper v Hart [1993] AC 593 37
Percy v DPP [2001] EWHC Admin 1125 180
Pickin v British Railways Board [1974] AC 765 22, 37, 39
Pickstone v Freemans plc [1989] AC 66 31
PJS v News Group Newspapers Ltd [2016] UKSC 26 200, 203
Plattform ‘Artze fur das Leben’ v Austria (1991) 13 EHRR 204 181
Police v Reid [1987] Crim LR 702 88, 89, 92, 98
Porter v Magill [2002] 2 AC 357 116, 168
Pretty v UK (2002) 35 EHRR 1 159
Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63 6
Pubblico Ministero v Ratti (Case 148/78) EU:C:1979:110, [1979] ECR 1629 30
R R v A (No 2) [2002] 1 AC 45 34

R v Bow Street Metropolitan Stipendiary Magistrate and Others,
ex p Pinochet Ugarte (No 1) [2000] 1 AC 61 116
R v Bow Street Metropolitan Stipendiary Magistrate and Others,
ex p Pinochet Ugarte (No 2) [2000] 1 AC 119 116, 127
R v Chaytor (David) and others [2010] UKSC 52 38
R v Civil Service Appeal Board, ex p Cunningham [1991] IRLR 297 121
R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 All ER 434 139
xvii
Table of Cases
R v Dudgeon (1982) 4 EHRR 149 157

R v Epping and Harlow Commissioners, ex p Goldstraw [1983] 3 All ER 257 141
R v Gaming Board, ex p Benaim and Khaida [1970] 2 QB 417 119
R v Handyside (1976) 1 EHRR 737 157
R v Howell [1982] QB 416 94, 98
R v Hull Prison Board of Visitors, ex p St Germain (No 2) [1979] 1 WLR 1401 122
R v ILEA, ex p Westminster City Council [1986] 1 WLR 28 111, 194
R v Inland Revenue Commissioners, ex p The National Federation
of Self-Employed and Small Businesses Ltd [1982] AC 617 136
R v Inner London Education Authority, ex p Westminster City Council [1986]
1 WLR 28 109
R v IRC, ex p Unilever plc [1996] STC 681 125
R v Knowsley MBC, ex p Maguire (1992) 142 NLJ 1375 144, 145
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’
Association [1972] 2 QB 299 119, 143
R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 125
R v Panel on Takeovers, ex p Datafin plc [1987] QB 815 135
R v Pintori [2007] EWCA Crim 170 117
R v Richmond-upon-Thames LBC, ex p McCarthy and Stone
(Developments) Ltd [1992] 2 AC 48 106
R v Secretary of State for the Environment, ex p Ostler [1977] QB 122 140
R v Secretary of State for Foreign Affairs, ex p World Development
Movement Limited [1994] EWHC Admin 1 136
R v Secretary of State for the Home Department, ex p Fire Brigades
Union [1995] 2 AC 513 9
R v Secretary of State for the Home Department, ex p Northumbria Police
Authority [1989] QB 26 8
R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER 442 76
R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 121
R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74 112
R v Secretary of State for the Home Department, ex p Simms [1999] UKHL 33 65
R v Secretary of State for Transport, ex p Factortame (No 2) [1991] AC 603 31
R v Soneji [2006] 1 AC 340 124, 127
R v Special Adjudicator (Respondent), ex p Ullah [2004] 2 AC 323 33
R v Stratford-upon-Avon DC, ex p Jackson [1985] 1 WLR 1319 138
R (Adath Yisroel Burial Society) v HM Coroner for Inner North
London [2018] EWHC 969 192
R (Anderson) v Secretary of State for the Home Department [2002]
UKHL 46, [2003] 1 AC 837 35, 63, 168, 191
R (Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233 191
R (Begum) v Governors of Denbigh High School [2006] UKHL 15 178
R (Brehony) v Chief Constable of Greater Manchester
Police [2005] EWHC 640 89, 92
R (Corner House Research and Another) v Director of Serious
Fraud Office [2008] UKHL 60 65
R (DSD and others) v Parole Board [2018] EWHC 694 (Admin) 113
R (Hallam) v Secretary of State for Justice [2019] UKSC 2 34
R (Hasan) v Secretary of State for Trade and Industry [2008] EWCA Civ 1311 121
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 26
R (Jackson and others) v HM Attorney General [2005] UKHL 56 19, 22, 28, 63, 78
R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ 1286 139
R (Laporte) v Chief Constable of Gloucester [2006] UKHL 55 94
xviii
Table of Cases
R (Miller) v Secretary of State for Exiting the European

Union [2017] UKSC 5 7, 9, 12, 23, 27, 48, 72, 76
R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland [2019]
UKSC 41 75
R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755 125
R (on the application of Conway) v Secretary of State for Justice [2018]
EWCA Civ 1431 159
R (on the application of Daly) v Secretary of State for the Home
Department [2001] 2 AC 532 172
R (on the application of Purdy) v DPP [2009] UKHL 45 157
R (on the application of Swami Suryananda) v Welsh Ministers [2007]
EWCA Civ 893 173, 191
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 140
R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 175
R (UNISON) v Lord Chancellor [2017] UKSC 51 64
Refah Partisi (the Welfare Party) v Turkey (2003) 37 EHRR 1 182
Reilly v Secretary of State for Work and Pensions [2013] UKSC 68 162
Ridge v Baldwin [1964] AC 40 118, 120, 127
Rivlin v Bilainkin (1953) 1 QBD 534 37
Roberts v Hopwood [1925] AC 578 109, 126
RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) 199
Rost v Edwards [1990] 2 QB 460 37
Roy v Kensington Family Practitioner Committee [1992] AC 624 134
Royal College of Nursing v Department of Health and Social Security
[1981] AC 800 143
S S and Marper v the United Kingdom (2008) (Grand Chamber),

(2009) 48 EHRR 50 174
Saadi v United Kingdom (2008) 47 EHRR 166
Salabiaku v France (1991) 13 EHRR 379 170
Secretary of State for the Home Department v JJ [2007] UKHL 45 164
Smith v East Elloe Rural District Council [1956] AC 736 140
Smith v Scott 2007 SC 345 36
Soering v United Kingdom (1999) 11 EHRR 439 161
SW v United Kingdom; CR v United Kingdom (1995) 21 EHRR 363 172
T T v United Kingdom (2000) 30 EHRR 121 169

Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 181
Thoburn v Sunderland City Council [2002] 4 All ER 156 25
Turkey v Turkey (1998) 26 EHRR 121 182
Tyrer v United Kingdom (1979–80) 2 EHRR 1 160
U Uner v The Netherlands (2007) 45 EHRR 14 175
V Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)

[1963] ECR 1 30
Venables and Thompson v News Group Newspapers Ltd [2001] 2 WLR 1038 195
Vidal-Hall v Google Inc [2015] EWCA Civ 311 200
Vine v National Dock Labour Board [1957] AC 488 106, 128
xix
Table of Cases
Von Hannover v Germany (No 1) (2005) 40 EHRR 1 198

Von Hannover v Germany (No 2) (2012) 55 EHRR 15 198
W Wainwright and another v Home Office [2003] UKHL 53 200

Wandsworth London Borough Council v Winder [1985] AC 461 134, 135
Wason v Walter (1868) LR 4 QB 73 37
Westminster Corporation v LNWR [1905] AC 426 108, 111, 194
Wheeler v Leicester City Council [1985] AC 1054 113, 126
xx
Table of Statutes
A Acquisition of Land (Assessment of Compensation) Act 1919 23

Act of Settlement 1701 72
Agricultural Marketing Act 1958 109
Animal Health Act 1981 173
Anti-social Behaviour Act 2003 91
Anti-terrorism, Crime and Security Act 2001 158
B Bill of Rights 1689

art 9 36–9, 41, 77, 80, 21, 26
C Charter of Fundamental Rights of the European Union ([2000] OJ C364/1) 29, 211
Art 47 211
Civil Procedure Rules (CPR)
Pt 54 132, 141, 146, 148
Colonial Laws Validity Act 1865 28
Communications Act 2003 179
Constitutional Reform Act 2005 6, 72, 73–4, 77, 80
s 1 63
s 3 72
Constitutional Reform and Governance Act 2010 71
Contempt of Court Act 1981 72
Coronavirus Act 2020 69
Crime and Security Act 2001 35, 63
Crime (Sentences) Act 1997
s 3(1) 35
s 29 35, 63
Criminal Justice Act 1988 9
Criminal Justice Act 2003 35
Criminal Justice and Courts Act 201 141, 142
Criminal Justice and Public Order Act 1994 92, 91, 171
Criminal Proceedings etc (Reform) (Scotland) Act 2007 53
Crown Proceedings Act 1947 8, 23, 64
D Defence Act 1842 8
E Early Parliamentary General Election Act 2019 17

European Communities Act 1972 31, 51
s 2 32, 208
s 2(1) 33, 207, 208, 215, 217, 30
s 2(2) 32, 207, 30
s 2(4) 31, 30
s 3 32, 208
s 3(1) 30
Table of Statutes
Education Act 1944

s 13 123, 124
s 13(3) 123
Equality Act 2010 207
European Communities Act 1972 25
s 2(4) 39
European Convention on Human Rights
Art 1 153, 154, 156, 161, 183, 185, 187, 201
Art 2 33, 154, 155, 158–161, 184, 185, 187, 195, 196, 201, 203
Art 2(2) 158
Art 3 33, 36, 154, 155, 158, 160, 161, 170, 185, 187, 195, 201
Art 4 154, 155, 162, 163, 201
Art 4(1) 158, 162
Art 4(2) 162
Art 4(3) 162
Art 5 63, 163, 81, 95, 154, 155, 158, 163–6, 185
Art 5(1) 163
Art 5(1)(a)–(f) 163, 165, 166
Art 5(2) 163
Art 5(3) 163
Art 5(4) 163
Art 5(5) 163
Art 5(6) 163
Art 6 33–5, 74, 154, 155, 166, 167, 169–72, 201
Art 6(1) 63, 166–9, 171
Art 6(2) 166–7, 170–1
Art 6(3) 166–7, 171, 172
Art 7 154, 155, 158, 172, 201
Art 7(1) 172
Art 7(2) 172
Art 8 33, 35, 157, 154–9, 170, 174–6, 185, 186, 191, 192, 194–9, 203
Art 8(1) 175–6
Art 8(2) 157, 175
Art 9 33, 154, 156, 173, 176–9, 191, 201
Art 9(1) 176
Art 9(2) 173
Art 10 33, 86, 194–7, 94, 154, 156, 157, 179, 180, 182, 192, 193, 201, 203
Art 10(1) 179, 193
Art 10(2) 181, 193–5
Art 11 33, 86, 89, 94, 154, 156, 181–2 201
Art 11(1) 86, 181
Art 12 154, 156, 183, 201
Art 13 183, 190
Art 14 63, 86, 183
Art 15 158, 160
Art 18 86
European Parliamentary Elections Act 1999 20
European Union (Notification of Withdrawal) Act 2017 23
European Union (Withdrawal) Act 2018 6, 12, 24
s 2 207, 208, 209, 213
s 3 207, 208, 213, 217, 209
s 4 208, 217, 209
s 4(1) 208
s 4(2) 208
xxii
Table of Statutes
s 5(2) 32
s 5(4) 211
s 5(5) 211
s 6 210
s 6(3) 210
s 6(5) A-D 210
s 6(6) 210
s 7 209
s 7(1) 209
s 7A 215
s 8 212
European Union (Withdrawal Agreement) Act 2020 25, 33, 29, 48, 78, 206, 218
s 38(1) 29
s 38(2) 29
European Union (Withdrawal) (No 2) Act 2019 70
European Union (Withdrawal) Act 2019 70
European Union Act 2011
s 18 32
Extradition Act 2003 25–6
F Fixed-term Parliaments Act 2011 8, 17, 22, 68, 76
G Government of Ireland Act 1920 44

Government of Wales Act 1998 24, 48
Government of Wales Act 2006 48, 49, 56
s A2 49
s 107(5) 50
s 107(6) 50
H Health and Safety at Work Act of 1974 159

Highways Act 1959 140
Highways Act 1980
s 137 86
House of Commons Disqualification Act 1975 16
s 1 77, 67, 80
s 2 16, 80, 67
House of Lords Act 1999 16
Human Rights Act 1998 5, 26, 34, 40–1, 51, 151–7, 159–72
s 1 33, 158, 153, 190, 201
s 2 33, 190, 189, 201
s 3 34, 35, 39, 189, 190, 201
s 4 34, 35, 39, 63, 78, 81, 159, 189, 190, 191, 201, 208, 211
s 4(2) 190
s 4(6) 191
s 6 146, 189, 190–3, 195, 201
s 6(1) 191, 195,
s 6(2) 191
s 6(3) 195
s 7 146, 190, 192, 193, 201, 202, 189
s 8 146, 190, 192, 201, 189
s 10 34, 191, 190, 189
s 12(4) 196
xxiii
Table of Statutes
s 14 192, 158

s 19 34, 190
Sch 33, 151, 153, 189, 190
Sch 2 191
Hunting Act 2004 20–2
I Immigration Act 1971 112, 161

Ireland Act 1949 44
Irish Free State (Constitution) Act 1922 44
L Life Peerages Act 1958 16–17

Local Government Act 1972
s 111 106
s 101 107
M Marriage Act 1949 183

Merchant Shipping Act 1988 31
N Northern Ireland (Temporary Provisions) Act 1972 44

Northern Ireland Act 1974 45
Northern Ireland Act 1998 24, 28, 45, 51
s 1 50
Northern Ireland Constitution Act 1973 44
O Official Secrets Act 1911 37

Overseas Development and Co-operation Act 1980 136
s 1(1) 136
P Parliament Act 1694 17

Parliament Act 1911 17, 22, 40
Parliament Act 1949 22, 40
Parliamentary Papers Act 1840 37
Parliamentary Standards Act 2009 38
Police Act 1964 8
Police and Criminal Evidence Act 1984 5
s 17(6) 94
s 76 170
s 78 169, 170
Prevention of Terrorism Act 2005 158
Prison Act 1952 122
Protection of Freedoms Act 2012 175
Public Order Act 1986 5, 85, 180
s 1 87
s 5 87, 180
s 11 87, 88, 95, 96
s 11(1) 87, 97
s 11(1)(a) 87
s 11(1)(b) 87
s 11(1)(c) 87
s 11(2) 87
xxiv
Table of Statutes
s 11(4) 87
s 11(7)(a) 88
s 11(7)(b) 88
s 11(8) 88
s 11(9) 88
s 12 88–91, 96
s 12(1) 89
s 12(1)(a) 88
s 12(1)(b) 88
s 12(10) 89, 92
s 12(2) 88
s 12(2)(a) 89
s 12(2)(b) 89
s 12(4) 89
s 12(5) 89
s 12(6) 89
s 12(8) 89
s 12(9) 89, 91
s 13 90, 91, 96
s 13(1) 89
s 13(4) 89
s 13(5) 89, 90
s 13(7) 90
s 13(8) 90
s 13(9) 90
s 13(11) 90
s 13(12) 90
s 13(13) 90
s 14 88, 89, 91, 92, 96
s 14(1) 91, 98, 88
s 14(4) 91
s 14(5) 91, 92
s 14(6) 92
s 14(8) 91
s 14A 92, 93, 99
s 14A(1) 92
s 14A(9) 92
s 14B(1) 93
s 14B(2) 93
s 14B(3) 93
s 14B(5) 93
s 14B(6) 93
s 14B(7) 93
s 14C 93
s 16 87, 91
R Referendums (Scotland and Wales) Act 1997 46, 48

Regulation (EC) 261/2004 ([2004] OJ L46/1) 208, 209, 212
Road Traffic Act 1988 53
Road Traffic Offenders Act 1988 53
Royal Parks and Other Open Spaces Regulations 1997 90
xxv
Table of Statutes
S Scotland Act 1978 45

Scotland Act 1998 5, 11, 24, 25–6, 46, 47, 53
s 28 11
s 28(7) 48
s 28(8) 48
Scotland Act 2012 24
Scotland Act 2016 6, 11, 24, 28, 48
Senedd and Elections (Wales) Act 2020 49
Senior Courts Act 1981 72, 132
s 31 132, 148
s 31(3) 136, 137, 146
s 31(3C) 141
s 31(2A) 142
s 31(4) 144, 145, 146
s 31(6) 146, 138
Sexual Offences (Amendment) Act 2000 20
Slavery Convention 1926
Art 1 162
Solicitors Act 1957
s 56 122
South Africa Act 1909 60
Southern Rhodesia Act 1965 22
State Immunity Act 1978 211
Suicide Act 1961
s 2(1) 159
T Taxes Management Act 1970 141

Tobacco and Primary Medical Services (Scotland) Act 2010
s 1 53
s 9 53
Town and Country Planning Act 1990
s 336 138
Treaty on the Functioning of the European Union ([2012] OJ C 326/01) 29, 76
Art 30 30
Art 157 33, 217, 30, 208
Art 267 30, 31, 210, 215
Treaty on European Union ([2008] OJ C115/13) 29
Art 50 22
U Union with England Act 1707 47

Union with Scotland Act 1706 47
W Wales Act 1978 48

Wales Act 2017 24, 50, 28, 49–50
War Crimes Act 1991 20
War Damage Act 1965 23, 39, 78
Y Youth Justice and Criminal Evidence Act 1999

s 41 34
xxvi
1 Constitutional Fundamentals
and Sources of the Constitution
1.1 What is a constitution? 2
1.2 Classifying constitutions 2
1.3 Core constitutional principles 3
1.4 Sources of the UK constitution 4
SQE1 syllabus
This chapter will enable you to achieve the SQE1 assessment specification in
relation to functioning legal knowledge concerned with core constitutional principles,
including:
• the role of constitutional conventions; and
• prerogative power: relationship with legislation and constitutional conventions.
Note that for SQE1, candidates are not usually required to recall specific case
names or cite statutory or regulatory authorities. Cases are provided for illustrative
purposes only.
Learning outcomes
By the end of this chapter you will be able to understand and apply some
fundamental constitutional principles appropriately and effectively, at the level
required of a competent newly qualified solicitor in practice, to realistic client-based
problems and situations, including the ability to:
• explain the meaning of the word ‘constitution’ and understand the ways in which
a constitution may be classified or described;
• appreciate the key principles upon which the UK constitution is based;
• explain the diverse sources of the UK constitution, including constitutional
conventions;
• understand the distinctions between the ‘legal’ and ‘non-legal’ sources of the UK
constitution; and
• understand the relationship between the royal prerogative and constitutional
conventions.
1
Constitutional and Administrative Law and EU Law
1.1 What is a constitution?

Constitutions are used in many types of organisation (for example political parties, clubs
and societies) to establish the fundamental rules and principles by which the organisation
is governed. A political constitution deals with the entire organisation of a state and how
its legal order is established. It will also give effect to the values that society regards as
important.
For our purposes, a constitution will usually define a state’s fundamental political principles,
establish the framework of the government of the state, and guarantee certain rights and
freedoms to the citizens. The fundamental political principles of a state will be the key political
ideas or doctrines on which the state is based. The framework of government will set out the
powers and duties of the executive, legislative and judicial branches of the state (see 1.3.2
below). The rights and freedoms of citizens will be those basic rights and freedoms which it is
agreed all citizens of the state should enjoy (for example, the right to free speech, or the right
to vote in free elections).
1.2 Classifying constitutions

Although we can identify what the basic elements of a constitution are, the constitution of a
state may be classified or described in a number of different ways. The ‘classification’ of a
constitution means identifying what the most important features of that particular constitution
are. The following paragraphs explain how constitutions can be classified and how the UK
constitution is usually classified.
1.2.1 Written/unwritten
A state with a written constitution will have its constitution set out in a single document.
This document will contain the fundamental laws of the constitution and define the powers of
the different branches of state. It may also contain a Bill of Rights setting out the fundamental
civil liberties to be enjoyed by citizens of the state.
A state with an unwritten constitution will not have its constitution set out in a single
authoritative document. Rather the constitution will be made up of a number of different
sources, such as statute and case law.
Unlike most countries, the UK has an unwritten constitution in the sense that there is no single
authoritative written document that sets out how the government should operate and what the
rights of individual citizens are. Rather, the UK constitution is made up of a variety of different
sources, which you will examine in detail later in this chapter.
1.2.2 Republican/monarchical
A state with a republican constitution will usually have a president (often elected directly or
indirectly) as its head of state. A state with a monarchical constitution will have an unelected
monarch as head of state (although the monarch’s role may be largely ceremonial).
The UK has a monarchical constitution. The head of state is the Queen, who is unelected and
head of state by virtue of her position within the royal family. As you will see later, however,
in practice the Queen exercises little real power. Most of her powers are, by convention,
exercised by the government on her behalf.
1.2.3 Federal/unitary
A state with a federal constitution will have a division of power between the central
government and regional government. A state with a unitary constitution will have a single
sovereign legislative body, with power being concentrated at the centre.
2
Constitutional Fundamentals and Sources of the Constitution
The constitution of the UK is unitary. The Parliament at Westminster is the supreme (or
sovereign) law-making body, and other law-making bodies within the UK (such as the Scottish
Parliament or local authorities) derive their law-making powers from powers they have been
given by the Westminster Parliament. However, some commentators argue that, as a result
of devolution, the UK constitution now exhibits some quasi-federal characteristics. As further
powers are devolved, this argument is likely to take on increasing strength.
1.2.4 Rigid/flexible
A state that has a rigid constitution has a constitution that is said to be ‘entrenched’. This
means that the constitution may be changed only by following a special procedure. Most
states with written constitutions tend to be rigid. A state that has a flexible constitution has
a constitution that is comparatively easy to change because no special procedures are
necessary for the constitution to be amended.
As a result of being unwritten, the UK constitution is flexible. Although from a political point of
view it may often be difficult to amend the constitution as some principles attract widespread
adherence across the political spectrum, legally the constitution may be changed quite easily
because there are no lengthy or complex procedures to follow.
1.2.5 Formal separation of powers/informal separation of powers

A state that has a formal separation of powers has a clear separation both of functions and
of personnel between the executive (ie the government), the legislative (ie the parliament)
and the judicial (ie the courts) branches of state. A state that has an informal separation of
powers is likely to have a significant degree of overlap in terms of functions and personnel
between the executive, the legislative and the judicial branches of state.
The UK constitution has a largely informal separation of powers. Although it is possible to
identify the executive, legislative and judicial branches of state, no formal mechanism exists to
keep them separate, and there is a degree of overlap between them both in terms of function
and personnel. There is little formal separation of powers under the UK constitution because
there is no written constitution to strictly separate the membership and functions of each
branch of state from other branches of state.
1.3 Core constitutional principles

Before you consider the detailed sources of the UK constitution, you need to be familiar with
the core principles on which the UK constitution is based. These principles are:
(a) the rule of law;
(b) the separation of powers; and
(c) the sovereignty (or supremacy) of Parliament.
In this section you will briefly consider the rule of law, the separation of powers and the
sovereignty of Parliament, but you will study them in more depth in later chapters.
1.3.1 The rule of law

You will study this in more detail in Chapter 4. Its key elements, though, can be summarised
as follows:
• There should be no arbitrary exercise of power by the state or government –all actions of
the state or government must be permitted by the law.
• Laws should be made properly, following a set procedure.
3
• Laws should be clear –laws should be set out clearly and be accessible, and a citizen
should be punished only for a clearly defined breach of the law.
• Laws should be certain –laws should not operate retrospectively and a citizen should not
be punished for an act that was not a crime at the time they carried out that act.
• There should be equality before the law –all citizens should have equal access to the
legal process for the redress of grievances, and the law should treat all persons in the
same way (for example, the law should not provide special exemptions or ‘get-outs’ for
government officials).
• The judiciary should be independent and impartial –the courts should be sufficiently
independent from the legislature and the executive so that judges can uphold the law
without fear of repercussions from the other branches of state.
1.3.2 The separation of powers

You will also study this in more detail in Chapter 4. Its essence is that there are three
branches of government:
(a) the legislature (or parliament) –the body that makes the law. In the UK the legislature
(Parliament) comprises the Queen, the House of Lords and the House of Commons;
(b) the executive (or government) –the body that implements the law. In the UK the executive
is made up of the Queen, the Prime Minister and other government ministers, the civil
service, and the members of the police and armed forces; and
(c) the judiciary (or courts) –the body that resolves disputes about the law. The judicial
branch of state is made up of the Queen, all legally qualified judges, and magistrates
(non-legally qualified members of the public who deal with some criminal matters).
As a result of the complex way in which modern states work, it is unrealistic for each branch
of state to be kept completely separate from the others. Most constitutions have therefore
developed the concept of ‘checks and balances’. The idea behind this is that each branch of
state is kept in check by powers given to the other branches, so that no one branch of state
may exert an excessive amount of power or influence. In Chapter 4 you will consider the
extent of the separation of powers in the UK in more depth.
1.3.3 The sovereignty of Parliament

You saw in 1.2.3 that the UK has a unitary constitution, with the Westminster Parliament being
the supreme law-making body. The doctrine of the supremacy (or sovereignty) of Parliament is
central to an understanding of how the UK constitution operates.
Parliamentary sovereignty (or supremacy) is a common law doctrine accepted by the judiciary,
under which the courts acknowledge that legislation enacted by Parliament takes precedence
over the common law. Basically it means that Parliament can pass any law that it wants to,
though you will see in Chapter 2, when you consider the principle in more depth, that there
may be limitations on its sovereignty.
1.4 Sources of the UK constitution

The constitution of the UK is not set out in a single written document. Rather, the UK
constitution is unwritten and has a variety of different sources. It is helpful to think of it as
being like a jigsaw –it is made up of a variety of different parts, and only when those parts
are pieced together can the constitution as a whole be understood.
4
In this section, you will consider the different sources of the UK constitution. There are four
principal sources:
(a) Acts of Parliament;
(b) case law;
(c) the royal prerogative; and
(d) constitutional conventions.
Each source will be considered in turn.
1.4.1 Acts of Parliament

Although our constitution is said to be unwritten, many important aspects of it are located in
various statutes that Parliament has enacted.
Magna Carta 1215: This has symbolic value as the first assertion of the limits on the powers
of the Monarch and of the rights of individuals. Magna Carta was extracted from King John by
his feudal lords and guaranteed certain rights to ‘freemen of the realm’, including trial by jury.
Magna Carta embodies the principle that government must be conducted according to the
law and with the consent of the governed. It established the principle that no one is above the
law and compelled King John to renounce certain rights, respect specified legal procedures
and accept that his will could be bound by the law. It also introduced the right to protection
from unlawful imprisonment
Bill of Rights 1689: This imposed limitations on the powers of the Crown (ie the Monarch)
and its relationship with Parliament. The Bill of Rights removed the power of the Monarch
arbitrarily to suspend Acts of Parliament and the power of the Monarch to impose taxation
without Parliament’s consent.
The Bill of Rights also provided that Parliament should meet on a regular basis, elections to
Parliament should be free from interference by the Monarch, and ‘freedom of speech and
debates in proceedings in Parliament ought not to be impeached or questioned in any court
or place out of Parliament’ (see Chapter 2).
Acts of Union 1706–07: These united England and Scotland under a single Parliament of
Great Britain (the Parliament at Westminster). They also contained provisions to preserve the
separate Scottish church and legal system (see Chapter 2).
Parliament Acts 1911 and 1949: The Parliament Acts altered the relationship between the
House of Lords and the House of Commons. These Acts ensured that the will of the elected
House of Commons would prevail over that of the unelected House of Lords by enabling
legislation to be enacted without the consent of the House of Lords (see Chapters 2 and 3).
Police and Criminal Evidence Act 1984: This Act is relevant to civil liberties. It provides the
police with extensive powers of arrest, search and detention, but also contains important
procedural safeguards to ensure that the police do not abuse such powers.
Public Order Act 1986: This Act is also relevant to civil liberties. It allows limitations to be
placed on the rights of citizens to hold marches and meetings in public places.
Human Rights Act 1998: The Human Rights Act 1998 (HRA 1998) incorporates the European
Convention on Human Rights (ECHR) into our domestic law. It marks a fundamental change
in the protection of human rights by allowing citizens to raise alleged breaches of their human
rights before domestic courts (see Chapters 2 and 9).
Acts of devolution (eg Scotland Act 1998): The Acts of devolution created a devolved
system of government in various parts of the UK. Acts establishing a Scottish Parliament and
assemblies in Wales and Northern Ireland have decentralised the process of government and
given greater autonomy to these parts of the UK (see Chapter 3).
5
Constitutional Reform Act 2005: This Act reformed the office of Lord Chancellor, transferring
the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice and
permitting the House of Lords to elect its own Speaker. It also provided for the creation of
a Supreme Court (to replace the Appellate Committee of the House of Lords) and created
a new body (the Judicial Appointments Commission) to oversee the appointment of judges
(see Chapter 4).
The European Union (Withdrawal) Act 2018: This Act repealed the European Communities
Act 1972 (ECA 1972), which had paved the way for the UK’s membership of the European
Union. It ended the supremacy of EU law and provided for the UK’s exit from the EU. It also
introduced into the UK’s legal systems the concept of retained EU law (see Chapter 10).
Although the above Acts are of great constitutional importance, each was enacted by
Parliament in the same way as any other Act of Parliament. No special procedure or
majority was required. Similarly, these Acts are not ‘entrenched’. In other words, each Act
may be repealed by an ordinary Act of Parliament, just as with any other statute. No special
procedure is required for its repeal. However, as you will see later, some recent Acts of
Parliament, such as the Scotland Act 2016, contain provisions stating that Parliament will not
legislate to achieve certain aims without first holding a referendum on the relevant issue.
As a result of having an unwritten constitution, in strictly legal terms, it is easy for Parliament
to make significant changes to the constitution. In the absence of a written constitution setting
out a ‘higher’ form of law against which all other legislation may be judged (and also as
a result of the development of the doctrine of parliamentary sovereignty), Parliament may
enact such legislation as it wishes and our courts cannot strike down such legislation as being
unconstitutional. Factors that limit Parliament’s ability to change the constitution tend to be
more political, economic or social as opposed to strictly legal. You will consider this further in
Chapter 2.
1.4.2 Case law

1.4.2.1 The common law
The common law is an important source of some key principles of our constitution.
(a) Residual freedom
The principle of ‘residual freedom’ (upon which civil liberties in this country are based)
developed through the common law. It means that citizens are free to do or say whatever
they wish unless the law (primarily expressed through Acts of Parliament) clearly states
that such an action or statement is prohibited.
(b) Actions of the state must have legal authority
It has also been established through the common law that actions taken by state officials
(such as police officers) must have a legal basis if they are to be lawful. This again links
to the principle of the rule of law and is illustrated by the very significant case of Entick
v Carrington (1765) 19 St Tr 1030. The Secretary of State issued a general warrant for
the arrest and search of Entick, who had allegedly been publishing ‘seditious material’.
The court found that there was no legal authority that enabled the Secretary of State to
issue such general warrants, and so the search was unlawful. The case established the
principle that state officials could not act in an arbitrary manner and that the exercise of
power by the state had to have clear legal authority.
(c) Legal disputes should be resolved by the judiciary
One of the earliest examples of the common law setting out constitutionally important
principles is the Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63. The case
concerned a dispute over land, which the King sought to settle by making a ruling. The
court held that the Monarch had no power to decide legal matters by way of arbitrary
6
rulings, and that legal disputes should properly be resolved by the courts. The resolution
of legal disputes by the judiciary is another aspect of the rule of law.
(d) Habeas corpus and individual liberty
Although it is now strengthened by statute, the remedy of habeas corpus, whereby an
individual who has been detained by the state has the right to have the legality of that
detention tested before a court, developed originally through the common law.
(e) Right to a fair hearing
Through the common law, the courts have repeatedly stressed the importance of the right
to a fair hearing as a fundamental constitutional principle and an important part of the
rule of law. The right to a fair trial is also contained in Art 6 of the ECHR, which now forms
part of UK law following the enactment of the HRA 1998.
1.4.2.2 Judicial review of executive actions

In addition to the common law being the source of several important constitutional principles,
the courts have also developed the process of ‘judicial review’. This is a mechanism that
enables the courts to ensure that the Government and other public bodies exercise the
powers that they have been granted in the proper way and so do not breach the rule of law.
You will consider judicial review in more detail in Chapters 6 and 7.
1.4.2.3 The interpretation of statute

In addition to developing important constitutional principles through the common law, the
judiciary have also made decisions of constitutional significance when interpreting statute
law. A noteworthy example of this is R (Miller) v Secretary of State for Exiting the European
Union [2017] UKSC 5. In this case, the Supreme Court interpreted the ECA 1972 as preventing
the Government from using the royal prerogative (see 1.4.3 below) as the legal basis for the
notice of withdrawal from the EU.
1.4.3 The royal prerogative

1.4.3.1 Scope of the royal prerogative
The UK Government derives most of its powers from various statutes in which Parliament has
given government ministers authority to make decisions or take action in a particular area.
In addition, however, some powers that the Government exercises are derived from the royal
prerogative.
Dicey defined the royal prerogative as follows: ‘the residue of discretionary or arbitrary
authority, which at any given time is legally left in the hands of the Crown … Every act which
the government can lawfully do without the authority of an Act of Parliament is done in virtue
of this prerogative’ (An Introduction to the Study of the Law of the Constitution, 1885).
Prerogative powers derive from the common law and are exercised by (or in the name of) the
Monarch. The royal prerogative is essentially what remains of the absolute powers that at one
time were exercised by the Monarch and that have not been removed by Parliament.
Although there is no definitive list of prerogative powers, the modern extent of the royal
prerogative covers the following principal areas:
(a) Foreign affairs:
(i) declarations of war and the deployment of armed forces overseas;
(ii) making treaties; and
(iii) the recognition of foreign states.
7
(b) Domestic affairs:

(i) the summoning of Parliament;
(ii) the appointment and dismissal of the Prime Minister (and other government
ministers);
(iii) the giving of Royal Assent to bills;
(iv) defence of the realm (ie the deployment of armed forces within the UK);
(v) the exercise of the prerogatives of pardon and mercy;
(vi) granting public honours; and
(vii) the setting up of public bodies to disburse funds made available by Parliament.
Although the Monarch is legally responsible for the exercise of the prerogative powers, most
of these powers are by convention exercised by the Prime Minister and other government
ministers on the Monarch’s behalf.
The ability of the Government to spend money to exercise its prerogative powers does
however depend on Parliament’s willingness to vote to provide the necessary funds.
You will consider the way in which the Government’s exercise of royal prerogative powers may
be regulated or controlled by Parliament and the judiciary in Chapter 4.
1.4.3.2 The royal prerogative and statute

Acts of Parliament can remove prerogative powers, as the Crown Proceedings Act 1947
shows. This Act abolished the immunity that the Crown previously had in respect of claims
against it both in tort and contract. Another more recent example of Parliament removing a
prerogative power is the Fixed-term Parliaments Act 2011. The Act provided for fixed days for
polls for parliamentary general elections, and it was envisaged that elections would be held
every five years; however, early elections took place in 2017 and 2019. It removed the power
that the Queen formerly exercised under the royal prerogative to dissolve Parliament at a time
of her choosing (by convention, the Queen would always dissolve Parliament when requested
to do so by the Prime Minister).
The position, however, is more complex when an Act does not explicitly override an aspect
of the prerogative, but nonetheless covers the same subject matter. In Attorney General v
De Keyser’s Royal Hotel [1920] AC 508, during World War I a hotel was requisitioned by the
Government for staff officers. The hotel sought compensation under the Defence Act 1842,
which authorised requisitioning and set out a right to compensation. The Government argued
it was using the royal prerogative and did not have to pay compensation. The House of Lords
stated that the issue depended on the construction of the statute. It might add a statutory
power or it might replace (and thus repeal) the prerogative power.
In this case the statute set out limitations and conditions on the exercise of the power of
requisitioning. It must have been contrary to the intention of Parliament for a government
to avoid these using the royal prerogative. Lord Dunedin stated that ‘if the whole ground of
something which could be done by the prerogative is covered by the statute, it is the statute
that rules’. Lord Atkinson commented that the prerogative had been abridged by statute and
so remained in abeyance as long as the statutory power remained in force. This suggests that
if the statute were repealed, the prerogative power would revive.
The Court of Appeal reached a contrasting decision in R v Secretary of State for the Home
Department, ex p Northumbria Police Authority [1989] QB 26. The Home Secretary wanted
to supply plastic bullets to local police forces, cutting out the police authorities. He issued
circulars to Chief Police Officers inviting them to apply direct for stores if they anticipated any
problem with their local police authority. The Northumbria Police Authority argued that, as the
Police Act 1964 gave police authorities the power to supply such equipment to police forces,
8
statute conflicted with the prerogative power, so the circulars were unlawful. The court held
that under the royal prerogative the Home Secretary had the power to maintain the Queen’s
Peace and to keep law and order. The court held that the statutory power could co-exist side
by side with the prerogative power, as they were not inconsistent. The prerogative would only
be curtailed if inconsistent with the statutory powers.
The House of Lords took a similar approach in R v Secretary of State for the Home
Department, ex p Fire Brigades Union [1995] 2 AC 513 to the one they had taken in the
De Keyser case. In 1964 the Government had set up a criminal injury compensation scheme
under prerogative powers with compensation being assessed on the basis of common law
damages. Parliament then passed the Criminal Justice Act 1988, which provided for a new
scheme with compensation payable on the same basis. Instead of bringing the Act into force,
the Home Secretary introduced under prerogative powers a new tariff based system which
generally provided less compensation. The claimants challenged the legality of the new
scheme.
The House of Lords held that the new tariff scheme was unlawful. It was an abuse of the
prerogative power to introduce a tariff scheme inconsistent with the statutory scheme
approved by Parliament. Statute had restricted the Home Secretary’s ability to introduce a
prerogative scheme based on inconsistent criteria.
As explained at 1.4.2.3 above, in R (Miller) v Secretary of State for Exiting the European Union
the Supreme Court ruled that the ECA 1972 had curtailed the Government’s powers with
regards to foreign relations. It could not use the prerogative to change domestic law and to
nullify rights that Parliament had created by statute. The accepted current position of law is
accordingly in line with the principle set out in De Keyser.
1.4.4 Constitutional conventions

Constitutional conventions are a non-legal source of the constitution. Accordingly, the courts
will not directly enforce them. Nonetheless, they play a crucial role in the UK constitution and
the workings of government.
1.4.4.1 Defining a constitutional convention

The sources of the constitution you have considered so far are often said to be its ‘legal’
sources because they have a clear legal basis. Constitutional conventions are an important
‘non-legal’ source of the constitution. Marshall and Moodie defined constitutional conventions
as: ‘rules of constitutional behaviour which are considered to be binding upon those who
operate the constitution but which are not enforced by the law courts … nor by the presiding
officers in the House of Commons’ (Marshall and Moodie, Some Problems of the Constitution
(Hutchinson, 1971)).
This definition may be broken down into three parts:
(a) ‘rules of constitutional behaviour’ –ie how those who perform a role within the constitution
should behave;
(b) ‘considered to be binding’ –ie there should be no deviation from these rules;
(c) ‘not enforced’ –ie the rules have no legal basis and so will not be enforced by any
judicial body.
Constitutional conventions are flexible. As they are ‘non-legal’, such conventions do not require
any particular step or procedure for their creation. Similarly, if a constitutional convention
becomes obsolete, it can be dispensed with without any formal steps being taken.
To gain a proper understanding of how the UK constitution works, you need to appreciate
the central role played by constitutional conventions. Set out below is a table with some legal
rules of the constitution and how in practice their operation is affected by conventions.
9
Table 1.1 Legal rules and conventions
Legal rule Convention
Royal Assent is required for a → The Monarch, on the advice of the Prime Minister,
bill to become a valid Act of always assents to a bill that has passed through
Parliament. The Monarch may Parliament.
refuse to give Royal Assent.
The Monarch constitutes part → The Monarch acts only on the advice of the Prime
of the executive branch of Minister and other ministers, and in practice most
government. decisions are taken by the Prime Minister and other
ministers themselves. Executive powers are exercised
through ministers, who are collectively and individually
responsible to Parliament.
The Government is the ‘Queen’s → The Monarch must appoint as Prime Minister the
government’, and she can person who can command the support of the majority
therefore appoint and dismiss its of the House of Commons (nowadays usually an
members as she chooses. elected party leader successful in a general election).
The Monarch must appoint and dismiss ministers on
the advice of the Prime Minister, all of whom must be
members of the House of Commons or Lords. Most will
be members of the Commons.
1.4.4.2 Important constitutional conventions

Set out below are the most common constitutional conventions in the UK:
(a) The Monarch plays no active role in matters of government, and the legal powers that are
vested in the Monarch are exercised on her behalf by the elected government of the day.
For example, the Monarch will appoint and dismiss government ministers on the advice of
the Prime Minister.
(b) The Monarch, acting on the advice of the Prime Minister, will not refuse Royal Assent to a
bill that has been passed by the House of Commons and the House of Lords. If advised
by the Prime Minister to assent to a bill, the Monarch will always do so. (Indeed, the last
time a Monarch refused Royal Assent was in 1707.)
(c) The Monarch will appoint as Prime Minister the person who is best able to command the
confidence of the House of Commons.
(d) All government ministers will be members either of the House of Commons or of the
House of Lords, and the Prime Minister (and most other senior government ministers)
should be a member of the democratically elected House of Commons rather than the
unelected House of Lords. It is now rare for a peer (other than the Leader of the House of
Lords) to sit in the cabinet.
(e) Individual ministerial responsibility. Government ministers are responsible to Parliament
both for the running and proper administration of their respective departments, and also
for their personal conduct. There must be no conflict of interest between a minister’s
public duties and his or her private interests. A minister who breaches this convention
should resign. For example, in 1982 the Foreign Secretary, Lord Carrington, resigned
following criticism of the administrative failings of his department, which had failed to
10
foresee the Argentine invasion of the Falkland Islands. Ministerial resignations owing to
departmental failings are, however, comparatively rare. In contrast, resignations relating
to a minister’s personal conduct are more frequent. For example, in November 2017 Priti
Patel resigned as International Development Secretary after conducting unauthorised
meetings with Israeli officials.
(f) Collective cabinet (or ministerial) responsibility. This constitutional convention has several
aspects to it:
(i) The cabinet is collectively responsible to Parliament for the actions of the Government
as a whole, and the Government must retain the confidence of the House of
Commons. A government that is defeated on a vote of ‘confidence’ in the House
of Commons must resign (as did the Labour Government when it lost such a vote
in 1979).
(ii) The cabinet must be united in public in support of government policy, and so a
cabinet minister must resign if he or she wishes to speak out in public against such
policy, as did Robin Cook in 2003, when he wished to voice his opposition to the war
in Iraq, and Boris Johnson in July 2018 over Theresa May’s Brexit policies.
(iii) Cabinet discussions must remain secret.
(g) The unelected House of Lords will not reject legislation that gives effect to an important
manifesto commitment of the democratically elected Government (the ‘Salisbury
Convention’).
(h) The UK Parliament will normally only legislate on a matter that has been devolved
to the Scottish Parliament if the Scottish Parliament has given its consent (the ‘Sewel
Convention’). Note that this convention was inserted into s 28 of the Scotland Act 1998 by
the Scotland Act 2016.
(i) Members of the judiciary do not play an active part in political life.
(j) Ministers and Members of Parliament do not criticise in public individual members of the
judiciary.
1.4.4.3 Why have constitutional conventions developed?

Reasons why conventions have developed include:
(a) To limit the wide legal powers of the Monarch without the need for major constitutional
upheaval.
It would be unacceptable in a modern democracy for an unelected Monarch to have
wide powers, so by convention these powers are now exercised by ministers on the
Monarch’s behalf. Moreover, if the Monarch were to disregard these conventions (outlined
at 1.4.4.2 (a)–(c) above), serious constitutional difficulties would arise. For example, there
would be a constitutional crisis were the Monarch ever to refuse Royal Assent to a bill
that had passed the Commons and Lords. Further, there would be legislative deadlock
if the Monarch failed to appoint as Prime Minister someone who could command the
confidence of the House of Commons.
(b) To ensure that the Government is accountable to Parliament for its actions.
Individual ministerial responsibility ensures that government ministers are held to account
for their actions and do not abuse their powers. Collective cabinet responsibility ensures
that the Government as a whole must retain the confidence of Parliament, and can be
held to account by Parliament for its actions.
(c) To maintain the separation of powers between the different branches of state.
The convention that members of the judiciary do not play an active role in politics helps
to preserve judicial independence. Similarly, the convention that ministers and MPs do not
criticise individual members of the judiciary also helps to preserve this.
11
1.4.4.4 Constitutional conventions and the courts

As you have seen, constitutional conventions differ from laws because they are non-legal rules
and so are not enforceable by the courts. The Supreme Court reaffirmed this in R (Miller) v
Secretary of State for Exiting the European Union (above). The Court emphasised that this
was because conventions operated in the political sphere alone. It also stated that including
reference to the Sewel Convention in statute had not turned it into a legal rule. Thus, despite
the fact that triggering Art 50 might breach the Sewel Convention, there would be no legal
remedy.
This does not, however, mean that constitutional conventions have no legal significance.
In Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, the Minister of Works had
delegated emergency powers to requisition property to a civil servant. Owners of a factory
requisitioned in this way applied for judicial review of the decision, arguing that the minister
himself should have taken the decision. The Court of Appeal recognised that under the
convention of ministerial responsibility the minister was accountable to Parliament for this
decision.
As the Carltona case shows, courts will acknowledge the existence of conventions, and
conventions may indirectly give rise to legal consequences that the courts will recognise.
However, if Parliament passes an Act that breaches a convention, the Act might be
unconstitutional, but the courts will not refuse to apply it for that reason.
In December 2010 the Government published for the first time a Cabinet Manual setting out
the main laws, rules and conventions affecting the conduct and operation of government.
Accordingly, many of the conventions described in this chapter have been set out in written
form. However, the Cabinet Manual is not intended to have any legal effect but instead to
provide guidance to ministers and officials.
1.4.5 Other sources of the constitution

In addition to the sources of the constitution outlined at 1.4.1 to 1.4.4 above, there are some
additional, comparatively minor sources of the UK constitution. Such sources include the laws
and customs (ie the internal rules and procedures) of Parliament and various academic
writings on the UK constitution.
Summary
The UK constitution is unwritten or uncodified. This means that there is no single document that
can be labelled ‘the Constitution’. Nonetheless, the UK does have a constitution with diverse
sources, in particular:
• Statute: These include statutes of constitutional significance such as the HRA 1998 and the
European Union (Withdrawal) Act 2018 (EUWA 2018).
• Case law: Judicial decisions have been responsible for many key constitutional principles,
such as the requirement for government actions to have legal authority and the right to a
fair trial.
• Royal prerogative: This comprises what is left of the Monarch’s arbitrary powers, and has
been very substantially curtailed by statute.
• Constitutional conventions: These are a non-legal source of the constitution and aid the
operation of the UK constitution.
12
Sample questions
Question 1
The Government is considering introducing a compensation scheme for victims of some
recent floods.
Which of the following best describes the options available to the Government in
relation to the royal prerogative?
A In the absence of statutory authority, the Government cannot use prerogative powers.
B By convention the Government should use statutory powers rather than prerogative
powers.
C The Government can use prerogative powers to introduce a compensation scheme less
generous than an existing statutory scheme.
D In the absence of a statutory scheme, the Government should be able to adopt a
non-statutory scheme and raise funds pursuant to its prerogative powers.
E In the absence of a statutory scheme, the Government should be able to adopt a
non-statutory scheme pursuant to its prerogative powers, subject to Parliament voting
the necessary funds.
Answer
Option E is correct. The type of scheme proposed in this question is similar to the criminal
injuries compensation scheme that was set up using prerogative powers. However,
Parliament will need to authorise expenditure, as the Government cannot use the
prerogative to authorise expenditure; hence option D is wrong.
Option A is wrong because prerogative powers are by definition non-statutory. In the
relatively rare fields where statutory and prerogative powers co-exist, there is no evidence
of a convention that the Government should use statutory powers; therefore option B is
wrong. Option C is also wrong as the Government cannot use a prerogative power in a
way that contradicts a statutory power.
Question 2
The Government is proposing to introduce legislation in Parliament that would breach a
recognised constitutional convention.
Which of the following best describes the constitutional implications of the
Government’s proposals?
A Any legislation passed by Parliament that breaches a recognised constitutional
convention risks being struck down by the Supreme Court.
B The courts will ignore the constitutional convention and apply the legislation.
C Although the courts will recognise the constitutional convention, they will nevertheless
apply the legislation.
D The courts will recognise the constitutional convention, but they will apply the legislation
if the breach of the convention is reasonable.
E It will be illegal for the Government to introduce legislation in Parliament that breaches
a recognised constitutional convention.
13
Answer
Option C is correct. Parliament is sovereign and legally can pass any legislation it pleases.
The courts will recognise the convention’s existence, but this will not stop them applying the
legislation.
Option A is wrong because the courts do not have the power to strike down legislation. Option
D is wrong as the courts will apply the legislation irrespective of the convention and whether
the breach is reasonable or not. Equally, there is no legal limit on the type of legislation that
the Government can introduce; hence option E is wrong. On the other hand, the courts will not
ignore the convention, so option B is wrong.
Question 3
A bill has passed through all stages in Parliament and has been submitted to the Monarch
for Royal Assent. The Leader of the Opposition has called on the Monarch to refuse Royal
Assent as the bill, on the Government’s own admission, breaches international law.
Will the Monarch refuse Royal Assent?
A No, because by convention the Monarch always grants Royal Assent to a bill that has
been passed by Parliament.
B No, because by law the Monarch must always grant Royal Assent to a bill that has
been passed by Parliament.
C Yes, because it is unconstitutional for Parliament to pass a bill that breaches
international law.
D Yes, because the bill is invalid due to its breach of international law.
E Yes, because international law is a higher form of law, which the Monarch must obey.
Answer
Option A is correct. Indeed, the last time the Monarch refused Royal Assent to a bill was in
1707. Option B is wrong as it is by convention that the Monarch grants Royal Assent; there
is no law to that effect. Parliament is sovereign and can pass Acts that breach international
law, and there is no precedent for the Monarch to refuse Royal Assent in those circumstances.
Hence options D and E are wrong so far as the UK constitution is concerned.
Whilst there might be academic debate whether or not it is ‘unconstitutional’ for Parliament
to breach international law, that will not affect the granting of Royal Assent, so option C
is wrong.
14
2 Parliament and Parliamentary
Sovereignty
2.1 Parliament 16
2.2 The composition of Parliament 16
2.3 The legislative process 17
2.4 The sovereignty (or supremacy) of Parliament 21
2.5 Limitations on the supremacy of Parliament 24
2.6 Parliamentary privilege 36
SQE1 syllabus
including:
• parliament and parliamentary sovereignty;
• parliamentary privilege; and
• powers and procedures for the enactment, implementation and repeal of primary
and secondary legislation.
purposes only.
Learning outcomes
problems and situations concerned with:
• the role and functions of the UK Parliament;
• the composition of Parliament and the procedure that is followed when legislation
is enacted;
• the nature of the relationship between the House of Commons and the House
of Lords;
• the doctrine of parliamentary sovereignty;
• the limitations on the operation of parliamentary sovereignty in both a domestic
and a European context; and
• parliamentary privilege.
15
2.1 Parliament
Parliament consists of three central elements: the House of Commons, the House of Lords
and the Monarch. Of the three elements the House of Commons is the most important.
Parliament’s main functions may be summarised as:
• Scrutinising the work of the Government
• Passing legislation; ie making new laws
• Debating the key issues of the day
• Approving the funding necessary for the Government to carry out its statutory duties and
legislative proposals
• Providing the personnel for Government (since all government ministers are drawn from
either the House of Commons or the House of Lords)
It is actually the Government that is responsible for drafting most legislation that is placed
before Parliament, and so, when it passes legislation, Parliament’s role is that of formal
enactment of legislation rather than making the law on its own initiative.
2.2 The composition of Parliament

The UK Parliament comprises two separate Houses: the House of Commons, and the House
of Lords together with the Monarch. Acts of Parliament must normally be approved by both
Houses and also receive Royal Assent.
2.2.1 The House of Commons

The House of Commons is a representative body, the membership of which is elected. There are
currently 650 Members of Parliament. Members of Parliament are elected by attaining the most
votes at a general election in their respective constituencies (the ‘first past the post’ system).
The Speaker is the chair of the House of Commons. By convention, they carry out their duties
impartially (eg ruling on procedural points and controlling debate).
Statute limits the number of holders of ministerial office in the Commons to 95 (House of
Commons Disqualification Act 1975, s 2 –see Chapter 4).
By convention, the Prime Minister is a member of the House of Commons, as are most other
cabinet ministers (see Chapter 1).
2.2.2 The House of Lords

The House of Lords is not elected and is not a representative body. Historically the House of
Lords was made up largely of hereditary peers (ie peers entitled to sit in the House of Lords
by virtue of their birth). However, the House of Lords Act 1999 enacted the first stage of what
the then Labour Government intended to be full-scale reform of the upper House by removing
the bulk of hereditary peers from the House. However, the Act allowed up to 92 hereditary
peers to remain.
Most members of the House of Lords are life peers appointed under the Life Peerages Act
1958. Such peers are appointed by the Monarch on the advice of the Prime Minister (although
the Prime Minister will in turn have received suggestions as to whom to appoint from a non-
political Appointments Commission, which puts forward prospective peers from a range of
different professions, interests and political affiliations).
The current membership of the House of Lords is as follows:
16
Parliament and Parliamentary Sovereignty
• The Lords Temporal –life peers (currently about 700) created under the Life Peerages Act
1958 and up to 92 hereditary peers.
• The Lords Spiritual (26 senior clergy of the Church of England).
Proposals for reforming the House of Lords and turning it into a partly or wholly elected body
have so far not come to fruition.
2.2.3 The meeting and duration of Parliament

2.2.3.1 Meeting
Under the Meeting of Parliament Act 1694, Parliament must be summoned every three years.
By convention, Parliament meets throughout the year, since taxes require annual renewal
and political reality, coupled with the volume of work, means that it is in almost permanent
operation.
2.2.3.2 Duration
The Parliament Act 1911 limits the maximum life of a Parliament to five years. Historically,
however, most Parliaments have not in fact lasted for the full five-year term. Until recently this
was because, acting pursuant to the royal prerogative, the Monarch has dissolved Parliament
at the request of the Prime Minister, and successive Prime Ministers have tried to seek
dissolution at a time when their political parties were popular with the electorate so as to
maximise their chances of success in the subsequent general election.
This has been changed by the Fixed-term Parliaments Act 2011 (FTPA). This provides for fixed
days for polls for parliamentary general elections. The polling day for elections will ordinarily
be the first Thursday in May every five years. The first such polling day was 7 May 2015. The
Act also makes provision to enable the holding of early parliamentary general elections. The
trigger for such general elections is either a vote of no confidence following which the House of
Commons does not endorse a new government within 14 days, or a vote by at least two-thirds
of all MPs in favour of an early election. In April 2017, MPs used this latter provision to vote for
a general election, with 522 MPs voting in favour of an election in June 2017 and 13 against.
In October 2019, following unsuccessful attempts by the Government to obtain the requisite
two-thirds majority to trigger a general election, Parliament enacted the Early Parliamentary
General Election Act 2019 to circumvent the FTPA in order to pave the way for the December
2019 general election. Only a simple majority of MPs was needed for the Act to pass.
In December 2020 the Government submitted a bill to Parliament providing for the repeal of
the FTPA and the revival of the prerogative power to dissolve Parliament.
2.2.3.3 ‘Sessions’
Each Parliament is divided into ‘sessions’. Parliamentary sessions now usually start in the
spring of one year and end in the spring of the next. A session ends when Parliament is
‘prorogued’ by Royal Decree. Prorogation terminates all business pending at the end of
a session. Any public bills that have not passed into law will normally lapse, although it is
possible to carry over public bills from one session to the next, subject to agreement.
2.3 The legislative process

The legislative procedure for primary legislation differs according to the type of bill passing
through its parliamentary stages. As most legislation is in this category, we will concentrate
on ‘public bills’, ie those that apply to the public in general. (‘Private’ bills in contrast only
change the law for an individual or locality.) Unless the Parliament Acts procedure is used
(see paragraph 2.3.4 below), a bill must have been approved in the same form by each
House before it is presented for Royal Assent.
17
Table 2.1 The legislative process
First reading
This stage is purely formal: the title of the bill is read out and it is then printed and published.
Second reading
At this stage the main debate takes place in the House of Commons on the general principles of
the bill.
Committee stage
The bill is usually referred to a general (or public bill) committee, consisting of 16–50 members
appointed by the Committee of Selection. There is proportional representation of parties on
general committees (ie they reflect the division of the parties within the House).
Important bills (for example, bills of constitutional significance or concerned with authorising
government expenditure) or bills that require little discussion because they are uncontroversial
and unimportant may be referred to the ‘Committee of the Whole House’.
The purpose of the committee stage is to examine the bill in detail. Amendments may be made to
its clauses.
Third reading
This stage involves the consideration of the bill as amended - normally the debate is brief and
only verbal amendments may be made. This is the final opportunity to vote on the bill; often MPs
do not.
Proceedings in the House of Lords

These do not begin until after the third reading in the Commons. The procedure in the Lords is
similar to that outlined above, except that the Committee of the Whole House almost invariably
takes the committee stage. When the bill has received its third reading in the Lords, it must be
sent back to the Commons if the Lords have made any amendments. Theoretically, the bill can go
backwards and forwards an indefinite number of times until the proceedings on it are terminated
by prorogation. In practice, however, if the Commons disagrees with Lords’ amendments and
restores the original wording, the Lords will usually accept it.
Royal Assent
Once Royal Assent is received, a bill becomes law and is referred to as an ‘Act of Parliament’.
The Act may suspend its ‘commencement’ until some future date, which may be determined by
delegated legislation made under the Act.
18
2.3.1 Public bills

Public bills alter the general law (ie the law that concerns the public as a whole). There are
two forms of public bill:
(a) Government bills: These bills are bills submitted to Parliament as part of the Government’s
legislative programme. They are usually listed in the Queens’s Speech at the start of a
parliamentary session and are usually public bills. The relevant government department
decides on the detailed contents.
(b) Private members’ bills: These are bills introduced by MPs or Lords who are not
government ministers. Although a very small minority of these ever become law due to
lack of parliamentary time, they sometimes create significant publicity regarding an issue
so may indirectly influence the Government’s legislative proposals.
The table above summarises what happens at each stage of the legislative process.
Except for financial measures, which must be introduced by a minister in the Commons, a bill
can generally be introduced in either House first.
Scottish devolution (Chapter 3 below) also has an impact on parliamentary procedure. The
so-called ‘West Lothian Question’ attracted increasing attention following the referendum
on Scottish independence held in September 2014. If some issues (such as education) are
devolved to the Scottish Parliament so that English MPs do not discuss them at Westminster,
why should Scottish MPs retain a vote at Westminster on corresponding English issues?
In October 2015 the House of Commons approved a change of parliamentary procedure. A new
stage has now been added to the usual procedure, allowing MPs for English constituencies
(or English and Welsh constituencies) to vote on issues deemed to affect only England (or only
England and Wales). These MPs will be able to veto the legislation at committee stage before
all MPs from across the United Kingdom vote in the bill’s final readings. The Speaker will certify
whether a bill affects only England (or only England and Wales), and all MPs in the Commons
will still have to pass the legislation at other stages of the process.
2.3.2 Private bills

Private bills relate to matters of individual, corporate or local interest, and affect particular
persons and/or a particular locality (eg a bill authorising the building of a new railway line or
tunnel).
2.3.3 The relationship between the House of Commons and the House of Lords
Although a bill must be passed by both Houses of Parliament, the House of Commons is
the more important of the two. This is because the members of the House of Commons are
directly elected by the people at a general election, and so the House of Commons has more
democratic legitimacy than the (currently) unelected House of Lords.
By convention the Prime Minister will sit in the House of Commons. Similarly, most cabinet and
junior government ministers will be drawn from the Commons.
The House of Lords is often described as being a ‘revising chamber’. There is a constitutional
convention, the Salisbury Convention, that the House of Lords will not reject a bill giving effect
to a major part of the democratically elected Government’s manifesto. Rather, the House
of Lords will use its considerable expertise to make small changes to legislation with which
it disagrees. Amendments are often proposed during proceedings in the Lords and, in a
significant number of cases, the Government accepts amendments after a defeat there.
If the House of Lords rejects a bill that has passed the House of Commons, the bill may still
eventually become law as a consequence of the provisions of the Parliament Acts of 1911 and
1949; see 2.3.4 below.
19
2.3.4 The Parliament Acts 1911 and 1949

The Lords’ role is constrained by the Parliament Acts 1911 and 1949, which ensure that
ultimately the will of the Commons may prevail. The Acts permit the Monarch to give Royal
Assent to a bill that lacks the consent of the House of Lords, provided that the Speaker has
certified that the provisions of the Acts have been complied with. These are as follows:
• ‘Money bills’ (ie public bills certified by the Speaker as dealing only with national taxation
or supply): A money bill passed by the Commons can be presented to the Queen for
assent one month after being sent to the Lords and will become law even though it lacks
the consent of the Lords.
• Other public bills: If passed by the Commons and rejected by the Lords in each of two
successive sessions, a bill can be sent to the Queen for her assent. One year must elapse
between the second reading in the Commons in the first session, and the third reading
there in the second session. Bills seeking to extend the maximum duration of Parliament
are excluded.
There had since the passing of the 1949 Act been some academic debate about the validity
of that Act and Acts passed under its authority, the Act itself having been passed via the
1911 Act. This debate was settled by the House of Lords (in its judicial capacity prior to
the coming into operation of the Supreme Court) in R (Jackson) v Attorney General [2005]
UKHL 56. It was argued that the 1949 Act was not a valid Act on the grounds that the
procedure set out in 1911 Act should not have been used to enact it. The House of Lords
rejected this argument and held that the 1949 Act had been properly enacted.
In fact most conflicts between the Lords and Commons are resolved by agreement and
application of the usual conventions, rather than by use of the Parliament Acts. They have
been used rarely, the only occasions since 1949 being for the War Crimes Act 1991, the
European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000 and
the Hunting Act 2004.
2.3.5 Delegated legislation

The provisions of an Act of Parliament often confer upon ministers a power to make delegated
or subordinate legislation. Delegated legislation is every exercise of power to legislate that is
conferred by or under an Act of Parliament. Delegated legislation may be made by ministers
in the form of rules or regulations (often ‘statutory instruments’), which supplement the
provisions of an Act of Parliament.
Parliament’s role is confined to scrutiny of delegated legislation. This is in fact not too different
from Parliament’s actual role in relation to primary legislation, but there are important
distinctions. Neither House of Parliament can amend delegated legislation, and often it can
come into effect without either House voting upon it at all. The ‘parent’ or ‘enabling’ Act
will stipulate the parliamentary procedure to be followed, but the following are the most
commonly used procedures:
• Affirmative resolution procedure: The instrument either cannot come into effect, or ceases
to have effect, unless one or both Houses passes a resolution approving the instrument.
• Negative resolution procedure: The Government is required to ‘annul’ the instrument if
either House passes a resolution rejecting the instrument within a specified period (usually
40 days) after it is ‘laid before Parliament’.
The House is assisted in scrutiny of delegated legislation by the Joint Select Committee on
Statutory Instruments (representing both Lords and Commons). Its job is to draw the attention
of Parliament to instruments that for various reasons might need to be debated.
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2.4 The sovereignty (or supremacy) of Parliament

2.4.1 Definition of parliamentary sovereignty
You considered the meaning of the doctrine of ‘parliamentary sovereignty’ (or supremacy) in
Chapter 1. The classic definition of this term was provided by AV Dicey:
The principle of parliamentary sovereignty means neither more nor less than
this: namely, that Parliament … has, under the English constitution, the right to make or
unmake any law whatever; and, further, that no person or body is recognised by the
law … as having a right to override or set aside the legislation of Parliament.
An Introduction to the Study of the Law of the Constitution
Dicey’s description may be broken down into three parts:
(a) Parliament is the supreme law-making body and may enact or repeal laws on any
subject.
(b) No Parliament may be bound by a predecessor or bind a successor –a particular Act of
Parliament cannot be entrenched, or be given a ‘higher’ status than any other Act.
(c) No other person or body (but particularly a court of law) may question the validity of an
Act of Parliament or declare that Act to be unlawful.
2.4.2 The development of parliamentary sovereignty

Following the English Civil War during the 1640s and Oliver Cromwell’s brief republic, the
Stuart Monarchy was restored to the throne in 1660 with the accession of Charles II. When
Charles died in 1685, his brother, James II, became king. James was a devout Catholic,
and tensions developed between James and a staunchly Protestant Parliament. A number
of Parliamentarians opened secret negotiations with William of Orange, the Protestant
husband of James’s daughter, Mary, with a view to his taking the throne by force. In 1688
William landed with his army in England, but James had already fled to France (the ‘Glorious
Revolution’).
In 1689 William, who was not yet king, summoned a Convention (or meeting) of peers and
commoners. The Convention declared itself to be the Parliament of England (it is now known
as the ‘Convention Parliament’) and passed the Bill of Rights, which set out the terms on which
the Crown was offered to William and Mary.
The terms of the Bill of Rights altered the balance of power between the Monarch and
Parliament in favour of the latter. It removed the powers of the Monarch arbitrarily to suspend
Acts of Parliament and to impose taxation without Parliament’s consent. The Bill of Rights also
provided that Parliament should meet on a regular basis and that elections to Parliament
should be free.
In terms of parliamentary sovereignty, the most significant part of the Bill of Rights is article 9,
which provided that ‘freedom of speech and debates or proceedings in Parliament ought not
to be impeached or questioned in any court or place out of Parliament’.
2.4.3 The ‘Enrolled Act’ rule

Although article 9 of the Bill of Rights guaranteed free speech in Parliament, the doctrine of
parliamentary sovereignty as defined by Dicey has been developed by the judges through the
common law.
The courts have consistently rejected challenges to Acts of Parliament based on alleged
irregularities in the procedure by which Parliament passed the relevant Acts. In Edinburgh
& Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710 it was claimed that the enactment
of a private Act was defective as due notice had not been given to a party affected by its
passage. The House of Lords dismissed the claim, Lord Campbell observing:
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All that a court of justice can do is to look to the Parliamentary Roll: if from that it
should appear that a bill has passed both Houses and received Royal Assent, no
court of justice can enquire into the mode in which it was introduced into Parliament,
what was done previously to it being introduced … or what passed … during its
progress … through Parliament.
This has become known as the ‘Enrolled Act’ rule –once an Act of Parliament has been
entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold
the Act to be void.
In the later case of Pickin v British Railways Board 1974] AC 765, Lord Reid confirmed that the
courts had no power to disregard an Act of Parliament, or to investigate proceedings that had
taken place in Parliament to determine whether there had been any irregularity of procedure
or fraud.
The more recent case of R (Jackson and others) v HM Attorney General [2005] UKHL 56
suggests that the courts may, in certain circumstances, be prepared to consider the validity
of an Act of Parliament. The case concerned a challenge to the validity of the Hunting Act
2004, which had been enacted pursuant to the Parliament Acts 1911 and 1949. As explained
at 2.3.4 above, it was claimed that the 1911 Act could not be used to enact the 1949 Act.
If this argument had succeeded, then the Hunting Act would have been invalid as it had
been passed using the procedure set out in the 1949 Act. A strict application of the ‘Enrolled
Act’ rule would have precluded the House of Lords from considering the case. However, the
House of Lords held that it did have jurisdiction to consider the validity of the Hunting Act
as a question of statutory interpretation of the 1911 Act, namely whether the 1911 Act could
be used to enact the 1949 Act. It thus concluded that there was no conflict with the ‘Enrolled
Act’ rule.
2.4.4 The unlimited legislative competence of Parliament

Parliamentary sovereignty asserts itself through Acts of Parliament (ie statutes), rather than
through mere parliamentary resolutions. Dicey’s definition of parliamentary sovereignty states
that there are no limits on Parliament’s legislative powers.
Examples of the unlimited legislative competence of Parliament include:
(a) Statute may override international law. In Cheney v Conn [1968] 1 All ER 779, a taxpayer
challenged an income tax assessment on the ground that part of the tax would be
used to finance the manufacture of nuclear weapons, which was contrary to the
Geneva Convention, an international treaty to which the UK was a party. The challenge
was unsuccessful. The court held that the statute that imposed the tax prevailed over
international law.
(b) Statute may override constitutional conventions. The case of Madzimbamuto v Lardner-
Burke [1969] 1 AC 645 is the authority for this. In 1965, Southern Rhodesia issued a
unilateral declaration of independence from Britain. However, the UK Parliament passed
the Southern Rhodesia Act 1965, which declared that Southern Rhodesia remained part
of the UK’s dominion territories. The validity of the Act was challenged on the basis that
there was an established constitutional convention that the UK Parliament would not
legislate for Southern Rhodesia without the consent of the Rhodesian Government. The
challenge was unsuccessful. The House of Lords held that the convention was overridden
by the Southern Rhodesia Act.
(c) Statute may alter the constitution. You have already considered statutes that are of
constitutional importance in Chapter 1. Some examples of statutes that have altered the
constitution include the Acts of Union 1706–07 (which united England and Scotland under
a single Parliament), the Parliament Acts and the HRA 1998 (which incorporated the
Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR)
(Rome, 4 November 1950) into the UK legal system.)
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(d) Statute may operate retrospectively. In Burmah Oil Co v Lord Advocate [1965] AC 75,
Burmah Oil sought compensation from the British for the destruction of oil installations
during World War II (to prevent Japanese forces obtaining control of them). The House
of Lords found that the Crown was liable to pay compensation. Parliament then enacted
the War Damage Act 1965. This Act applied retrospectively and so removed the right to
compensation.
(e) Statute may abolish or curtail aspects of the royal prerogative. Some examples of this
include:
(i) the Crown Proceedings Act 1947, which abolished the immunity of the Crown in
respect of claims made against it in either tort or contract;
(ii) the Fixed-term Parliaments Act 2011, which removed the power of the Monarch to
dissolve Parliament and requires Parliament in future to sit for a fixed period of five
years before a general election will automatically take place (see 2.2.3.2 above);
(iii) R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, where
the Government argued that it could trigger Art 50 of the Treaty on European Union
using its prerogative powers to make or unmake treaties. The majority of the Supreme
Court held that the ECA 1972 was inconsistent with the future exercise by government
ministers of any prerogative power to withdraw from the EU treaties. Any such
withdrawal would need the consent of Parliament. Parliament subsequently passed
the European Union (Notification of Withdrawal) Act 2017.
2.4.5 Express and implied repeal of statute

You saw in 2.4.1 above that one aspect of parliamentary sovereignty is that no Parliament
may be bound by a predecessor or bind a successor. This is given effect through the doctrines
of express and implied repeal.
If a later Parliament expressly repeals the contents of an Act made by an earlier Parliament,
that earlier Act will no longer be valid. But what happens if a later Parliament passes an Act
that contradicts the contents of an Act made by an earlier Parliament but does not expressly
repeal that earlier Act? In these circumstances the doctrine of implied repeal will apply.
In Ellen Street Estates v Minister of Health [1934] KB 590, the claimant sought to persuade the
court to apply compensation provisions contained in the Acquisition of Land (Assessment of
Compensation) Act 1919 rather than those contained in the later Housing Acts of 1925 and
1930. The two sets of statutory provisions were inconsistent, but the earlier ones were more
favourable.
The 1919 Act stated that any provisions of any other Act ‘so far as inconsistent with this Act
shall cease to have or shall not have effect’. The claimant argued that this could be construed
so as to govern future Acts, and the later Housing Acts contained no express provisions to
repeal the 1919 Act.
The Court of Appeal dismissed the claim because it considered that the later Housing Acts
impliedly repealed the 1919 Act to the extent of any inconsistency between them. Maugham
LJ said in his judgment:
The legislature cannot, according to our constitution, bind itself as to the form
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.
In other words, a later Act of Parliament will impliedly repeal the provisions of an earlier Act
to the extent of any inconsistency between the two Acts.
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2.5 Limitations on the supremacy of Parliament

2.5.1 Domestic limitations
2.5.1.1 The Acts of Union
The United Kingdom was formed following Acts of Union with Scotland in 1706–07 and Ireland
in 1801. Some commentators have argued that, as a consequence, Parliament was born
‘unfree’, because it is limited by the terms of these Acts and cannot legislate so as to override
their provisions.
Of particular importance are the Acts of Union 1706–07. These gave effect to a Treaty of
Union by which the English and Scottish Parliaments agreed to vest their authority in a new
Parliament of Great Britain. The Acts made explicit provision for the preservation of the
separate Scottish legal system and the Church of Scotland. Some have argued that, as a result
of these provisions, the Acts of Union are in effect a partial written constitution for the UK, by
which subsequent Parliaments are bound. Such arguments have become somewhat academic,
however, with the return of devolved legislative power to a Scottish Parliament (see 2.5.1.2
below).
Although the matter has never been directly considered by the courts, obiter comments by
the Scottish Court of Session in the case of MacCormick v Lord Advocate 1953 (Scot) SC 396
suggested that the Westminster Parliament was bound by the terms of the Acts of Union.
2.5.1.2 Devolution
On coming to power in 1997, the Labour Government devolved power to Scotland, Wales and
Northern Ireland. You will cover devolution in more depth in Chapter 3, so in this chapter we
shall simply consider its impact on parliamentary sovereignty.
The Scotland Act 1998 established a Scottish Parliament and Executive. Legislative powers in
certain areas (such as health, education and legal affairs) are devolved to the Parliament.
Other areas (such as foreign affairs and defence) are reserved to the Westminster Parliament.
The Scotland Act 2012 gave additional powers over some aspects of taxation and other areas
to the Scottish Parliament. The Scotland Act 2016 amends the Scotland Act 1998 and includes
provisions stating that:
(a) the Scottish Parliament and Scottish Government are a permanent part of the
constitutional arrangements of the UK;
(b) neither the Scottish Parliament nor Scottish Government may be abolished unless the
people of Scotland vote for this in a referendum; and
(c) the UK Parliament will not normally legislate with regard to devolved matters without the
consent of the Scottish Parliament.
The Scotland Act 2016 also increased the range of devolved powers, including the power to
vary income tax rates and thresholds.
The Government of Wales Act 1998 established a Welsh Assembly, initially without legislative
powers. The Wales Act 2017 has now changed this, so that devolution in Wales follows a
similar format to that in Scotland. Under the Wales Act 2017 the (now commonly known as the
Senedd Cymru) has been devolved power to legislate in those areas that are not reserved to
Westminster. The Wales Act 2017 also mirrors the provisions in the Scotland Act 2016 relating
to permanency, the need for a referendum and setting out the Sewel convention.
The Northern Ireland Act 1998 devolved powers to a Northern Ireland Assembly and created
a ‘power-sharing executive’ (which can be –and indeed on occasions has been –suspended
under the Act). It also contains a provision that Northern Ireland shall not cease to be part of
the UK unless the people of Northern Ireland vote for this in a referendum.
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The most significant devolution of power has been to Scotland under the terms of the Scotland
Act. The Scottish Parliament is not a sovereign legislature in the way that the UK Parliament
is as it derives its powers from the Scotland Act, an Act of the UK Parliament. Although its
legislation is designated as primary legislation, ie the Scottish Parliament has the power to
pass Acts, the Scottish Parliament may legislate only to the extent that it is given power to do
so by the UK Parliament under the Scotland Act.
The UK Parliament can also still legislate for Scotland, although the Sewel Convention provides
that the UK Parliament ‘will not normally legislate with regard to devolved matters without
the consent’ of the devolved legislatures. As a general rule, in normal circumstances the UK
Parliament is unlikely to legislate in devolved areas without the devolved legislature’s consent.
However, aspects of the European Union (Withdrawal Act) 2018 and the European Union
(Withdrawal Agreement) Act 2020 related to devolved matters, even though international
relations are reserved to the UK Parliament. The Scottish Parliament refused to give its
consent to the bills leading up to the 2018 and 2020 Acts, but the UK Parliament nevertheless
enacted them.
Whether the UK Parliament can repeal the Scotland Act 1998 is a matter of debate. The
Scotland Act 2016 states that the Scottish Parliament and Scottish Government are a
permanent part of the constitutional arrangements of the UK, and that neither the Scottish
Parliament nor Scottish Government may be abolished unless the people of Scotland vote
for this in a referendum. Thus, without such a referendum, it would be difficult for the UK
Parliament to do this. Depending on your view of the ‘manner and form debate’ (which
you will consider at 2.5.1.5 below), you may take the view that such difficulties would be
political only. Alternatively, you may take the view that the courts would not uphold legislation
repealing the Scotland Act 1998 in the absence of a referendum.
2.5.1.3 Acts of independence

During the 20th century, Parliament enacted various Acts granting independence to former
colonies of the British Empire. Would it be possible for Parliament to reverse such legislation
and resume legislating for former colonies?
In strict legal terms, Parliament could reverse such legislation. But, as with Scottish
devolution, both for political and practical reasons it is most unlikely that Parliament would
ever consider repealing such legislation. Furthermore, even if Parliament did repeal the
Acts of independence and resume legislating for the colonies, such legislation would be
unenforceable.
2.5.1.4 Limits on the doctrine of implied repeal

At 2.4.5 above you considered the doctrine of implied repeal. This holds that an Act of
Parliament will impliedly repeal the contents of an Act of an earlier Parliament to the extent of
any inconsistency between the two Acts.
It has been suggested, however, that the doctrine of implied repeal may not apply to
‘constitutional statutes’. In Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws
LJ suggested that there are two types of statute, ‘ordinary’ and ‘constitutional’. Statutes that
are ‘constitutional’ are of such significance that the courts would require actual intention from
Parliament to change them, not an implied intention.
The test for a constitutional statute is:
(a) the statute must condition the legal relationship between citizen and state in some
general, overarching manner; or
(b) the statute must change the scope of fundamental constitutional rights.
Laws LJ said that several key statutes satisfied this test:
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We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes

and ‘constitutional’ statutes… Examples are the Magna Carta, the bill of Rights 1689 …
the Human Rights Act 1998 … [and] … the European Communities Act … Ordinary
statutes may be impliedly repealed. Constitutional statutes may not.
For a constitutional statute to be repealed, there had to be ‘express words’ or ‘words so
specific that the inference of an actual determination to effect [the repeal of a constitutional
statute] … was irresistible’.
Clearly, Laws LJ had in mind only a very limited number of statutes as being of sufficient
importance to satisfy this test.
Laws LJ’s views have subsequently found support in three Supreme Court decisions.
The first of these Supreme Court decisions is H v Lord Advocate [2012] UKSC 24, in which
the Supreme Court considered an apparent contradiction between the Extradition Act
2003 and the Scotland Act 1998. The Supreme Court decided that there was no
contradiction between the Acts. Nonetheless, Lord Hope, obiter, went on to consider what
the position would have been had there been a contradiction between the two Acts.
Under the doctrine of implied repeal, the Extradition Act would have prevailed over the
Scotland Act. However, Lord Hope rejected this possibility, stating:
It would perhaps have been open to Parliament to override the [relevant]
provisions of [the Scotland Act] … But in my opinion only an express provision
to that effect could be held to lead to such a result. This is because of the
fundamental constitutional nature of the settlement that was achieved by the
Scotland Act. This in itself must be held to render it incapable of being altered
otherwise than by an express enactment. Its provisions cannot be regarded as
vulnerable to alteration by implication from some other enactment in which an
intention to alter the Scotland Act is not set forth expressly on the face of the
statute. (emphasis added)
Whilst Lord Hope was referring to the Scotland Act, there seems no reason to confine his
reasoning to that Act. The Scotland Act could not be impliedly repealed because of its
‘fundamental constitutional nature’; logically other statutes of a fundamental constitutional
nature, ie those described by Laws LJ as ‘constitutional statutes’, should also be immune to
implied repeal.
The issue of implied repeal was also raised in R (HS2 Action Alliance Ltd) v Secretary of
State for Transport [2014] UKSC 3. The case concerned a challenge to ‘HS2’, the proposed
high speed rail link between London and northern cities. Opponents of HS2 argued the
parliamentary process procedure did not comply with EU Directive 2011/92, which
requires public participation in major infrastructure decisions affecting the environment.
They argued that the parliamentary process did not provide for effective public
participation.
The Supreme Court decided that the Directive did not apply, but nonetheless went on to
consider in some very interesting obiter dicta what the position would have been had
it done so. If it had, the Supreme Court would have been obliged to consider whether
the parliamentary procedure complied with the requirements of the Directive. According
to Lord Reed, this could have impinged ‘upon long-established constitutional principles
governing the relationship between Parliament and the courts, as reflected for example
in article 9 of the Bill of Rights 1689’. This raised the possibility of conflict between
parliamentary privilege as set out in article 9 of the Bill of Rights and EU law, a conflict
that Lord Reed affirmed would have to be ‘resolved by our courts as an issue arising
under the constitutional law of the United Kingdom’.
As this case took place during the UK’s membership of the EU, the House of Lords
accepted the primacy of EU law over national law on the grounds that the ECA 1972
26
required UK courts to give effect to that principle. However, it is also clear that the
Supreme Court thought that there were fundamental principles contained in Acts of
Parliament or recognised at common law that will not be overridden even by subsequent
constitutional statutes unless there is unequivocal evidence of parliamentary intention to
amend or repeal them. On the facts, the Supreme Court held the Directive did not require
it to investigate parliamentary procedure. However, if it had done so, the clear tenor of
the judgments of the justices is that the Supreme Court would have refused to carry out
such an investigation on the basis of article 9 of the Bill of Rights, which prohibits the
courts from enquiring into parliamentary procedure. Article 9 of the Bill of Rights would
therefore not have been impliedly repealed by the ECA 1972, which would have required
such an investigation.
In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the
Supreme Court referred to the ‘informative discussion’ by Laws LJ in Thoburn and
concluded that ‘[t]he 1972 Act accordingly has a constitutional character’.
2.5.1.5 The ‘manner and form’ debate

The doctrines of express and implied repeal prevent an earlier Parliament from binding a
future Parliament as to the content of legislation which that future Parliament might enact. But
is it possible for an earlier Parliament to bind a future Parliament as to the procedure which
that future Parliament must follow to enact legislation?
This is known as the ‘manner and form’ or entrenchment theory – can a Parliament bind its
successors as to the procedure to be adopted when repealing legislation enacted by that
earlier Parliament?
Arguments in favour of the ‘manner and form’ theory

Supporters of the ‘manner and form’ theory use the Parliament Acts 1911 and 1949
(considered at 2.3.4 above) to support their case. The Parliament Acts made it ‘easier’ for
legislation to be passed because, in certain circumstances, the Acts removed the requirement
for legislation to have been approved by the House of Lords.
Supporters of the manner and form theory argue that if Parliament (in enacting the Parliament
Acts) could make it ‘easier’ to legislate, there is no reason why Parliament could not make it
‘harder’ for a future Parliament to legislate. For example, an earlier Parliament could pass an
Act and, within that Act, specify that the Act could be repealed only by a specified majority in
Parliament (rather than a simple majority), or that, in addition to a parliamentary vote, repeal
could take place only if this was also supported in a referendum. In other words, the Act could
be entrenched.
Another argument sometimes raised in support of the manner and form theory is that the rules
for identifying an Act of Parliament derive from the common law (ie such rules are ‘judge-
made’). As an Act of Parliament can override the common law, it is suggested that Parliament
can alter the legal rules on which the validity of an Act of Parliament rests.
There are some Commonwealth authorities that suggest that entrenchment of legislation is
possible. The case most often cited is Attorney General for New South Wales v Trethowan
[1932] AC 526. This case concerned an attempt by the Parliament of the Australian state of
New South Wales to entrench certain provisions in an Act of Parliament by providing that
these provisions could not be repealed unless they were approved in a popular referendum
in addition to being approved by the Parliament. When a later Parliament passed a bill
repealing the provisions, no referendum was held. The Privy Council held that the repeal of
the Act was invalid because a referendum should have taken place.
Arguments against the ‘manner and form’ theory

Those who take issue with the ‘manner and form’ theory dispute the importance of the
Trethowan case. First, they argue that, as a Privy Council case, Trethowan is persuasive only
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and not binding on domestic courts. Secondly, they argue that the position of the legislature of
New South Wales cannot be seen as analogous to that of the UK Parliament. This is because
the UK Parliament is truly ‘supreme’ (because it was not created by another body), whereas
the Parliament of New South Wales is a subordinate legislature in that it was created by an
Act of the UK Parliament (the Colonial Laws Validity Act 1865). Indeed, it has been suggested
that Trethowan supports the argument that parliamentary sovereignty cannot be limited,
because the case is an example of a subordinate legislature (ie the Parliament of New South
Wales) being kept within the powers granted to it by the supreme UK Parliament.
Some academics who oppose the ‘manner and form’ theory have argued that the meaning
of Parliament was ‘fixed’ following the constitutional restructuring in 1688 and the enactment
of the Bill of Rights in 1689 (see 2.4.2 above). They argue that the meaning of ‘Parliament’
cannot be altered by an ordinary Act of Parliament, and so no Parliament has the power to
redefine this meaning or to place limitations on the way in which a future Parliament may act.
Conclusion on the ‘manner and form’ theory

In conclusion, the position on manner and form is unclear. This was illustrated by the divergent
views of two members of the House of Lords in R (Jackson) v Attorney General [2005] UKHL 56.
In support of the manner and form theory, Lord Steyn said:
Parliament could for specific purposes provide for a two-thirds majority in the House
of Commons and the House of Lords. This would involve a redefinition of Parliament
for a specific purpose. Such redefinition could not be disregarded.
In contrast, Lord Hope said:
it is a fundamental aspect of the rule of sovereignty that no Parliament can bind its
successors. There are no means whereby … it can entrench an Act of Parliament.
Some provisions in the Scotland Act 2016, the Wales Act 2017 and the Northern Ireland
Act 1998 arguably attempt to impose manner and form requirements, in that they require a
positive vote in a referendum in addition to an Act of Parliament in some circumstances. The
Scotland Act 2016 requires a referendum before either the Scottish Parliament or Scottish
Government is abolished (similar provisions are contained in the Wales Act 2017). The
Northern Ireland Act 1998 provides that Northern Ireland shall not cease to be part of the
UK unless the people vote for this in a poll. It is questionable as to whether domestic courts
would uphold legislation that purported to achieve these objectives if approval was not also
obtained in a referendum.
2.5.1.6 Henry VIII powers

Legislation that has been introduced by the Government will often contain ‘Henry VIII’ powers.
These powers permit the relevant government minister to amend or even repeal the relevant
statute by delegated legislation. This is said to be contrary to the fundamental principle of
the sovereignty of Parliament because it enables ministers –rather than Parliament –to make
or change the law. In 2010, the Lord Chief Justice, Lord Judge, expressed concerns relating
to Henry VIII powers, cautioning that by ‘allowing [such powers] to become a habit, we are
[risking] the inevitable consequence of yet further damaging the sovereignty of Parliament’.
2.5.1.7 The rule of law

In R (Jackson) v Attorney General [2005] UKHL 56 Lord Steyn considered obiter that
parliamentary sovereignty was not absolute and could be limited by the courts in extreme
circumstances. Lord Steyn said that the doctrine of parliamentary sovereignty was a ‘construct
of the common law’ (ie principle created by the judges). The judges could therefore qualify the
principle to prevent Parliament from legislating in a manner that was contrary to the rule of
law. Lord Steyn cited as an example if Parliament enacted legislation to abolish judicial review
of executive action or, more generally, if Parliament abolished the role of the courts. In such
circumstances he speculated that the courts might be willing to strike down such legislation.
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Other judges have lent support to the view that the rule of law may trump parliamentary
sovereignty in certain circumstances. In Moohan v Lord Advocate [2014] UKSC 67, Lord Hodge
stated, obiter:
I do not exclude the possibility that in the very unlikely event that a parliamentary
majority abusively sought to entrench its power by a curtailment of the franchise or
similar device, the common law, informed by principles of democracy and the rule of
law and international norms, would be able to declare such legislation unlawful.
However, he went on to state that ‘the existence and extent of such a power is a matter
of debate, at least in the context of the doctrine of the sovereignty of the United Kingdom
Parliament’.
2.5.2 European limitations

The European Union treaties and the ECHR are all international treaties that, according to the
UK’s dualist’ system, required incorporation into domestic law by an Act of the UK Parliament.
Incorporation of both EU law and key ECHR rights into domestic law was undoubtedly
significant as providing individuals with remedies under the EU treaties and the ECHR in the
domestic courts. However, the method of incorporation adopted for each was rather different.
We shall now examine each in turn.
2.5.3 Membership of the European Union

2.5.3.1 The doctrine of supremacy of European Union law
The legal order of the European Union is based on a number of treaties, the key treaties now
being known as the Treaty on European Union ([2008] OJ C115/13) (TEU), the Treaty on the
Functioning of the European Union ([2012] OJ C 326/01) (TFEU) and the Charter of Fundamental
Rights of the European Union ([2000] OJ C364/1). During the UK’s membership of the EU, the
UK was required to give supremacy to EU law. This led to considerable debate about whether
parliamentary sovereignty was compatible with the supremacy of EU law. Although the UK left
the EU on 31 January 2020, some understanding of how the UK legal system accommodated
the supremacy of EU law is essential to comprehend provisions in the EUWA 2018 regarding
retained EU law. Additionally, the UK and EU negotiated a Withdrawal Agreement (Agreement
on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the
European Union and the European Atomic Energy Community ([2020] OJ L29/7)) (the
Withdrawal Agreement). The Withdrawal Agreement sets out the terms of the UK’s exit from the
EU. The European Union (Withdrawal Agreement) Act 2020 gives supremacy to the Withdrawal
Agreement in a very similar manner to which the ECA 1972 gave supremacy to the EU
treaties. However, s 38(1) of the 2020 Act, entitled ‘Parliamentary sovereignty’, recognises that
Parliament is sovereign, whilst s 38(2) states that this sovereignty persists notwithstanding any
provisions in the 2020 Act giving direct effect to the provisions of the Withdrawal Agreement.
It should also be noted that the Withdrawal Agreement provided for the continued supremacy
of EU law during the transition period lasting from the date of the UK’s withdrawal until 31
December 2020 (subject to the possibility of extension, which, however, did not occur).
2.5.3.2 Types of EU legislation

The EU treaties comprise the primary source of EU law. They lay down the legal framework
of the EU and set out the EU’s institutional framework and confer on the EU a wide range of
powers in a large number of areas. They also give the EU the power to legislate in a wide
range of areas by adopting secondary legislation.
There are four types of EU secondary legislation:
• Regulations: Regulations issued by the EU are directly applicable and automatically
binding in all Member States without the need for any further legislation in the Member
States.
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• Directives: Directives set out objectives to be achieved and oblige Member States to pass
domestic legislation themselves to implement those objectives. Directives set a date by
which Member States must implement them.
• Decisions: Decisions are directly binding in the same way as regulations, but only
on those to whom they are addressed, which may be Member States, companies or
individuals.
• Recommendations and opinions: Recommendations and opinions are not binding.
2.5.3.3 Direct effect

A key principle that gave supremacy to EU law is ‘direct effect’, which the ECJ first developed
in the landmark case of Van Gend en Loos v Nederlandse Administratie der Belastingen
(Case 26/62) [1963] ECR 1. The claimants had imported a product into the Netherlands from
Germany and had been charged a customs duty contrary to what is now Article 30 TFEU. They
challenged the duty in the Dutch courts, which referred the case to the ECJ. The ECJ ruled
that Article 30 had direct effect and so the claimants could rely on it in the Dutch courts to
claim back the customs duty. This was an example of ‘vertical’ direct effect; ie EU law being
enforced against the state or a state body.
Subsequently in Case 43/75 Defrenne v SABENA ECLI:EU:C:1976:56, [1976] ECR 455, the ECJ
ruled that Treaty articles could also have horizontal direct effect and be enforced against
private bodies. The Belgian airline, SABENA, paid its female cabin crew less than its male
cabin crew. Although this was permissible under Belgian law, this breached what is now
Article 157 TFEU, which provides that men and women should receive equal pay for equal
work or work of equal value. The ECJ held that individuals could rely on the direct effect of
Article 157 against private bodies before their national courts; accordingly, a female member
of SABENA’s cabin crew was able to claim equal pay.
The ECJ has also ruled that regulations and decisions are capable of both vertical and
horizontal direct effect. In contrast, directives can only have vertical direct effect; ie they
can only be enforced against the state or emanations of the state. However, in order for a
provision of EU law to have direct effect it must be sufficiently clear, precise and unconditional
and must not require additional measures, either at national or EU level (the ‘Van Gend
criteria’). Furthermore, for a Directive to have direct effect, there is an additional requirement
that the time limit for implementation by Member States has expired (Case 148/78 Pubblico
Ministero v Ratti EU:C:1979:110, [1979] ECR 1629).
2.5.3.4 The UK’s approach

When the UK joined the EU, it signed up to the supremacy of EU law. However, the fact that
the UK Government accepts treaty obligations on behalf of the UK does not, however, in itself
have any effect on parliamentary sovereignty. Treaties are made by the UK Government alone
and do not of themselves change the law. Under the ‘dualist’ system that operates in the
UK, if the Government signs a treaty that requires a change in the law, it is for Parliament to
authorise such a change by legislation.
The UK Government signed what is now the TFEU on 22 January 1972, but the Treaty was not
incorporated into domestic law until later that year when Parliament enacted the ECA 1972.
The principal provisions of the ECA 1972 were as follows:
• Section 2(1): This provided that directly effective rights and obligations arising under EU
law should be enforceable in the UK courts.
• Section 2(2): This enabled the UK Government to make delegated legislation to
implement EU law (eg directives) within the UK.
• Section 2(4): This required all UK legislation whenever to be adopted (primary and
secondary) to ‘be construed and have effect’ subject to provisions of EU law.
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• Section 3(1): This requires UK courts to apply EU law in accordance with principles laid
down by the ECJ (ie decisions of the ECJ are in effect binding).
Accordingly, during the UK’s membership of the EU, the ECA 1972 required UK courts to
apply EU law in the cases they were hearing. To ensure that the courts of the Member States
interpreted EU law correctly, Article 267 TFEU also enables and sometimes requires national
courts to refer questions of interpretation of EU law to the ECJ. During the UK’s membership
of the EU and the transition period, UK courts often referred questions of EU law to the ECJ
and then applied the EU’s interpretation to the facts of the case they were hearing. The ECJ
developed many key principles of EU law such as direct effect through Article 267 references
from national courts.
2.5.3.5 The effect of ECA 1972, s 2(4)

Section 2(4) of the ECA 1972 had a significant impact on the doctrine of parliamentary
sovereignty. It essentially had two limbs. First, it created a rule of construction, by providing
that the courts had to read UK legislation in such a way as to make it compliant with EU law.
In EU law, this is known as the doctrine of indirect effect. If, however, it was not possible for
the courts to read UK legislation in such a way, the courts had to give precedence to directly
effective EU law and set aside inconsistent national legislation.
2.5.3.6 Indirect effect

An example of indirect effect in the UK can be found in Pickstone v Freemans plc [1989] AC
66. Female employees brought an equal pay claim against their employer, the catalogue
company Freemans. They worked for Freemans as ‘warehouse operatives’ but were paid less
than a male colleague, who was described as a ‘warehouse checker operative’. However,
their work was of equal value to Freemans as their male colleague’s work. Therefore, they
argued, the true reason for the difference in pay was sex discrimination. Such discrimination
breached Directive 75/117 –the Equal Pay Directive. However, the UK regulations (supposedly
implementing the Directive) only provided for equal pay for the same work done by men and
women, not for work of equal value.
The House of Lords held that the purpose of the UK regulations had been to give effect to
EU law. A strict reading of them failed to achieve this, and so the House of Lords adopted a
‘purposive’ interpretation in which it departed from the strict literal interpretation of the UK
regulations and implied words into the regulations in order to comply with EU law.
2.5.3.7 Conflict between UK law and EU law

Cases such as Pickstone v Freemans show that the courts were willing to construe UK
legislation in such a way as to make it compliant with EU law, often construing legislation
against its strict literal meaning or implying words into statute to achieve the desired result.
In some cases, however, it was impossible for the courts to interpret statute in such a way as
to comply with EU law because there was a direct conflict between them. This occurred in
R v Secretary of State for Transport, ex p Factortame (No 2) [1991] AC 603.
The UK passed the Merchant Shipping Act 1988 to prevent fishing in British waters by Spanish
fishermen who had set up a British company (Factortame Ltd) and registered their boats
as British under existing merchant shipping legislation. The Act imposed new conditions for
registration, and the Secretary of State made regulations under the Act so that vessels had to
re-register. The boats owned by Factortame were refused registration. Factortame challenged
the Act on the grounds that it breached EU law on free movement and asked for an interim
injunction suspending the operation of the Act. This issue was appealed to the House of Lords.
The House of Lords refused the interim injunction, but made an Article 267 reference to the ECJ
on whether it was correct to do so.
The ECJ held that the House of Lords should have granted an injunction, as this was necessary
to protect the rights of Factortame under EU law. Accordingly the House of Lords granted the
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interim injunction, effectively suspending the operation of an Act of Parliament. The effect
of this decision was that the doctrine of implied repeal did not prevent directly effective EU
law prevailing over post-1972 Acts of Parliament where there was a conflict between their
respective provisions. Where a conflict existed, the provisions of directly effective EU law
took precedence by virtue of s 2(4) of the ECA 1972, which had been acknowledged to be a
constitutional statute that could not be subject to implied repeal.
The judgment in Factortame had a profound effect on the doctrine of parliamentary
sovereignty. The House of Lords suspended the operation of an Act of Parliament and held
that, by virtue of s 2(4), directly effective EU law took precedence over conflicting UK law.
However, the reason that the House of Lords did this was because Parliament, by enacting the
ECA 1972, had in effect instructed the courts to do so.
Section 18 of the European Union Act 2011 confirmed this approach by clarifying that any
‘limits’ on sovereignty were imposed only at Parliament’s own behest.
2.5.3.8 State liability for non-implementation of EU law

In addition to challenging UK legislation that is incompatible with EU law, an individual who
had suffered resulting loss may obtain damages from the Crown, as a result of the decision
in Joined Cases C–6/90 and 9/90 Francovich v Italian Republic ECLI:EU:C:1991:428, [1991]
ECR I-5357, as considered and developed in later case law. So, for example, if an individual
suffered loss because the UK failed to implement a directive, they would have had a right
of action under Francovich even where they would have been unable to use the directive
itself. This might happen where the directive conferred rights against employers (eg to equal
treatment in employment) but the individual was employed by a private employer rather than
the state. (Directives only have ‘vertical’ effect, against state bodies.)
The significance of this for parliamentary sovereignty was the UK Government might have
been liable to pay damages arising from Parliament’s failure to pass legislation giving effect
to EU law, or the defective implementation of EU law in an Act of Parliament.
2.5.3.9 Express repeal of the ECA 1972

Although the judgment in Factortame made it clear that Parliament could not impliedly repeal
EU law, legally there was nothing to prevent Parliament passing an Act which expressly
repealed the ECA 1972 or any provision of EU law. Following the 2016 referendum when UK
electorate voted to leave the EU, Parliament enacted the EUWA 2018, which repealed the ECA
1972. However, the European Union (Withdrawal Agreement) Act 2020 had kept in force the
provisions in sections 2 and 3 of the ECA 1972 providing for the supremacy of EU law until the
end of the transition period.
2.5.3.10 Retained EU law

Under the EUWA 2018, all EU law in force at the end of the transition period will be converted
into domestic law and labelled ‘retained EU law’. Section 5(2) of the EUWA 2018 provides that
the principle of supremacy of EU law will continue to apply to retained EU law, so that if there
is a conflict between pre-Brexit domestic law and pre-Brexit directly effective EU law, then the
EU law will take priority.
The concept of retained EU law will be covered in more depth in Chapter 10. Briefly it
consists of:
• EU-derived domestic legislation: This will consist chiefly of secondary legislation adopted
pursuant to s 2(2) of the ECA 1972 to implement EU obligations. The secondary legislation
would otherwise have fallen away on the repeal of the ECA 1972. It will also include Acts
of Parliament enacted to implement EU obligations. Although these Acts would not have
fallen away on the repeal of the ECA, it is important to define them as retained EU law to
ensure they benefit from its special status.
32
Whilst the bulk of EU-derived domestic legislation consists of secondary legislation, it also
includes some Acts of Parliament.
• Direct EU legislation: This will consist of EU legislation that applies directly in the UK such
as regulations and decisions.
• Rights etc arising under s 2(1) of the ECA 1972: This will consist of directly effective EU
rights and obligations that do not fall under either of the previous two categories. An
example given in the explanatory notes accompanying the EUWA 2018 is Art 157 TFEU –
equal pay for male and female workers.
One important consequence of legislation falling within the scope of retained EU law is that
it will retain a limited form of supremacy. Whilst the EUWA 2018 will terminate the general
supremacy of EU law, retained EU law will remain supreme over other UK legislation enacted
before the end of the transition period. For example, suppose an Act of Parliament passed in
2010 conflicts with an earlier piece of retained EU law such as an EU regulation adopted in
2005. Under the doctrine of implied repeal, the 2010 Act would prevail over the regulation, but
as retained EU law the EU regulation will prevail over the 2010 Act. However, UK legislation
enacted after the end of the transition period will prevail over retained EU law. It is in this
context important to know if an Act of Parliament is retained EU law. For example, an Act
passed in 2005 that is retained EU law will prevail over a later Act enacted before the end of
the transition period that is not retained EU law.
The European Union (Withdrawal Agreement) Act 2020 also gives direct effect to any
provisions in the Withdrawal Agreement that meet the criteria for direct effect. Chapter 10
covers this in more depth.
2.5.4 Incorporation of the ECHR into domestic law

The ECHR was written in 1950 and protects rights such as the right to life (Article 2), the right
not to be tortured (Article 3), the right to a fair trial (Article 6), the right to a private and family
life (Article 8), and freedom of religion, expression and association (Articles 9–11). The UK
became a signatory in 1951, but it was only in 1965 that the UK Government recognised the
right of individual citizens to petition the European Court of Human Rights (ECtHR) under the
Convention. Further, it was not until the enactment of the Human Rights Act that individual
citizens could bring a claim for breach of their rights under the ECHR before our domestic
courts. Prior to this, domestic courts would not consider a legal claim based on an alleged
breach of an individual’s human rights. Individuals in the UK could only enforce their ECHR
rights by taking their case to the ECtHR in Strasbourg after exhausting all domestic remedies.
2.5.5 Method of incorporation

In contrast to the ‘strong’ method of incorporation of EU law into domestic law, the language
used in the HRA 1998 suggests a ‘weak’ method of incorporation of the ECHR.
The key sections of the HRA 1998 are as follows:
(a) Section 1 (and Schedule 1). Section 1 lists the articles of the Convention incorporated into
UK law, with the articles themselves set out in Schedule 1.
(b) Section 2. Although domestic courts must ‘take into account’ judgments of the ECtHR, they
are not bound to follow such judgments. However, in practice domestic courts do normally
follow them. Lord Bingham provided an authoritative summary of what s 2 entails for UK
courts in R v Special Adjudicator (Respondent), ex p Ullah [2004] 2 AC 323:
While … case law [of the ECtHR] is not strictly binding … courts should, in
the absence of some special circumstances, follow any clear and constant
jurisprudence of the Strasbourg court.
Many commentators argue that Lord Bingham was being overly deferential to the ECtHR.
There are signs that UK courts are now more willing to depart from ECtHR case law
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than previously as can be seen, for example, in the comments of the Supreme Court in
R (Hallam) v Secretary of State for Justice [2019] UKSC 2.
(c) Section 3. Primary and secondary legislation must be interpreted in accordance with
Convention rights ‘so far as it is possible to do so’. This applies to legislation passed both
before and after the coming into force of the HRA 1998.
(d) Section 4. Where a court cannot interpret legislation in a manner that makes the
legislation compliant with Convention rights, the courts may make a declaration of
incompatibility. Such a declaration does not invalidate or affect the operation of the
offending Act.
(e) Section 10. Where a declaration of incompatibility has been made under s 4 or a
judgment of the ECtHR makes it clear that legislation is incompatible with Convention
rights, this section creates a ‘fast-track’ procedure that the Government may use to amend
the relevant legislation, if there are ‘compelling reasons’ to do so; alternatively it can
submit a bill to Parliament for this purpose. The Government is not, however, compelled to
amend the offending legislation, and if it decides not to, an aggrieved litigant would have
to take his or her case to the ECtHR to obtain redress.
(f) Section 19. A minister who introduces a government bill into Parliament must, before
the second reading of the bill, either make a statement that the provisions in the bill
are compatible with Convention rights, or alternatively make a statement to the effect
that although they are unable to make a statement of compatibility, the Government
nevertheless wishes the House of Commons to proceed with the bill.
This has been described as a ‘weak’ method of incorporation compared to the ECA 1972. The
drafting of the HRA 1998 was designed specifically to preserve the supremacy of Parliament.
In its White Paper, Rights Brought Home: The Human Rights Bill, the Government said that the
Act was ‘intended to provide a new basis for judicial interpretation of all legislation, not a
basis for striking down any part of it’.
There was a fear that, were a ‘strong’ method of incorporation chosen, the judiciary would
have had the power to strike down Acts of Parliament and deprive such acts of their legal
effect.
2.5.6 Impact of the Human Rights Act on parliamentary sovereignty

2.5.6.1 Section 3 of the Human Rights Act 1998: principle of construction
Two House of Lords’ cases show that the courts have been willing to use s 3 of the HRA 1998 to
stretch the meaning of legislation to make such legislation compatible with Convention rights.
In R v A (No 2) [2002] 1 AC 45, s 41 of the Youth Justice and Criminal Evidence Act 1999
imposed restrictions on a defendant charged with rape from being permitted to adduce at his
trial evidence of his alleged victim’s previous sexual history. The House of Lords considered
that a strict reading of this section could contravene a defendant’s right to a fair trial under
Article 6 of the ECHR, because there were circumstances when such evidence might be
relevant to the issue of consent. The House of Lords therefore read this section to mean that
evidence of a complainant’s previous sexual history could not be adduced, provided this did
not infringe the defendant’s right to a fair trial.
The House of Lords effectively read extra words into the statute. Lord Steyn conceded that this
had required the courts to ‘adopt an interpretation which may appear linguistically strained’.
He also said that s 3 imposed a duty on the courts to ‘strive to find a possible interpretation
compatible with Convention rights’.
In Ghaidan v Godin-Mendoza [2004] 2 AC 557, under relevant housing legislation, the rights
to a tenancy of residential premises could be inherited by the tenant’s surviving spouse, or by
someone living with the tenant at his or her death as the tenant’s wife or husband. The issue
on appeal was whether this extended to the survivor of a same-sex couple who had been
34
living together and how, therefore, the relevant provisions should be interpreted in the light of
Article 8 of the ECHR (the right to respect for private and family life).
The House of Lords held that, when given its ordinary meaning, the housing legislation
treated survivors of homosexual partnerships less favourably than survivors of heterosexual
partnerships, without any rational or fair ground for such distinction, and this constituted a
breach of the surviving partner’s rights under Art 8 of the Convention. Accordingly the House of
Lords used its power under s 3 of the HRA 1998 to read the housing legislation as extending
to same-sex partners. This took the provisions of the legislation much further than their literal
meaning. The lead judgment was again given by Lord Steyn:
Section 3 requires a broad approach concentrating … in a purposive way on the
importance of the fundamental right involved.
Both cases show that the courts have perhaps gone further than Parliament intended when
exercising their powers of interpretation under s 3. The only occasions on which the courts will
be unable to use their interpretative powers under s 3 to ensure that a statute is compatible with
Convention rights is when to do so would be expressly contrary to the wording of the statute.
2.5.6.2 Section 4 Human Rights Act 1998: declarations of incompatibility

Where the courts are unable to interpret domestic legislation in such a way as to make it
compatible with Convention rights, a declaration of incompatibility may be made under s 4
of the HRA 1998. Such a declaration is merely a legal statement that, in the opinion of the
court, the relevant legislation contravenes the ECHR. The declaration does not invalidate
the legislation, and neither the Government nor Parliament is under any legal obligation to
amend it.
However, when the courts have made a declaration of incompatibility there will frequently
be considerable political pressure on the Government to amend or repeal the relevant
legislation. This occurred following the decision of the House of Lords in R (Anderson) v
Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837. This case
concerned how long adults convicted of murder should spend in prison for purposes of
punishment. At the time of the case, the final decision on this was taken by the Home
Secretary in accordance with s 29 of the Crime (Sentences) Act 1997.
It was alleged that the s 29 provision was inconsistent with Article 6 of the ECHR. This was
because the imposition of sentence is part of the trial process, and thus should be determined
by an independent and impartial tribunal. As a member of the executive, the Home Secretary
was not an independent and impartial tribunal. It was not possible to interpret s 29 of the
Crime (Sentences) Act 1997 in such a way as to make it compatible with Convention rights,
because such an interpretation would have been contrary to the wording of the section:
Section 3(1) is not available where the suggested interpretation is contrary to express
statutory words or is by implication necessarily contradicted by the statute.
(per Lord Steyn)
The House of Lords accordingly made a declaration of incompatibility. The Government
subsequently introduced legislation (the Criminal Justice Act 2003) to abolish the Home
Secretary’s powers to determine the length of sentence in such cases.
The strength of the Government’s political obligation to respond to a declaration of
incompatibility is illustrated by the Government ‘s response to the decision of the House
of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68 (the ‘Belmarsh’
case). This involved a challenge to provisions in the Anti-terrorism, Crime and Security Act
2001, which permitted foreign nationals suspected of being involved in terrorist activities (but
against whom there was insufficient evidence to bring criminal proceedings) to be detained
indefinitely without trial. The House of Lords held that such detention breached the ECHR, and
made a declaration of incompatibility in respect of the relevant part of the 2001 Act. Within
three months of this decision, the offending legislation was repealed.
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The sole example where Parliament has refused to amend incompatible legislation is Hirst v
United Kingdom (No 2) [2005] ECHR 681, where the ECtHR ruled that a blanket ban on British
prisoners exercising the right to vote was contrary to Article 3 of Protocol 1 to the ECHR (the
right to free elections). The Scottish Registration Appeal Court in Smith v Scott 2007 SC 345
issued a declaration of incompatibility in relation to the ban, but the UK Government and
Parliament remain strongly opposed to amending the incompatible UK legislation, and any
amendments to UK legislation seem highly unlikely. Instead a compromise was reached,
with the Government allowing prisoners who are released on temporary licence or on home
detention curfew to vote (this did not require a change in legislation). The Council of Europe in
December 2018 accepted that this is sufficient to comply with the ECtHR’s judgment.
2.5.6.3 Express repeal of the Human Rights Act 1998

Legally there is nothing to prevent Parliament amending or expressly repealing the HRA 1998.
For political reasons, however, it has been thought that Parliament is unlikely to take such a
step. By incorporating the ECHR into UK law, the 1998 Act has put in place a number of basic
rights for citizens of the UK, and to remove such rights would be politically unpopular.
However, there has been considerable criticism of the operation of the 1998 Act and ECHR by
some politicians and sections of the media. Consequently the Conservative Party manifesto
for the 2019 general election contained a commitment to ‘update [the 1998 Act] to ensure that
there is a proper balance between the rights of individuals, our vital national security and
effective government’. The Government has accordingly announced that it will commission an
independent review to see how the provisions of the HRA 1998 are operating and consider
whether the framework could be improved.
2.6 Parliamentary privilege

Both Houses of Parliament have a privilege jurisdiction, which is designed to enable them to
manage their own proceedings without outside interference. This is part of the law and custom
of Parliament. In outline, the main privileges of the House of Commons are as follows:
(a) Freedom of speech
(b) The right to control its own composition and procedures (‘exclusive cognisance’)
The Committee of Privileges, a Commons select committee, is responsible for considering
specific matters relating to privileges referred to it by the House.
2.6.1 Freedom of speech

Freedom of speech is based on article 9 of the Bill of Rights 1689, which provides that
freedom of speech and debates or proceedings in Parliament ‘ought not to be impeached or
questioned in any court or place out of Parliament’. The aim of freedom of speech is to enable
parliamentarians to carry out their functions without fear of civil proceedings or criminal
prosecutions. However, it also applies to parliamentary officials and non-members such as
witnesses before a committee of one of the Houses.
A consequence of this privilege is that MPs and Lords have immunity from legal proceedings,
leading to concerns that MPs or Lords may abuse this privilege, for example by libelling
individuals with impunity. MPs and Lords also have immunity from contempt of court and
have sometimes disclosed in debates facts that could not otherwise be lawfully disclosed.
For example, in October 2018 Lord Hain, a former cabinet minister, during a debate in the
Lords named Sir Philip Green as the businessman accused of sexual harassment and bullying,
even though Sir Philip had obtained an interim injunction preventing disclosure of his identity.
In May 2011 Liberal Democrat MP John Hemming named the former Manchester United
36
footballer Ryan Giggs as being involved in an affair notwithstanding an injunction preventing

disclosure of his name.
This privilege only covers ‘proceedings in Parliament’. Whilst the privilege clearly includes
core proceedings such as parliamentary debates, questions in Parliament and committee
proceedings, defining its exact extent can be problematic. Erskine May (Parliamentary
Practice, 25th edn (London, 2019)) states; ‘it has been concluded that an exhaustive definition
[of proceedings in Parliament] could not be achieved’. As a general rule, however, privilege
encompasses ancillary matters such as words spoken or written and actions taken outside
the core proceedings themselves, but which are of necessity connected to those proceedings.
Parliament, through its committees, has sometimes attempted to define the scope of privilege.
A particularly noteworthy case was that of Duncan Sandys MP. In 1938 he was threatened with
prosecution for breaching the Official Secrets Act 1911 when he refused to disclose the source
of a leak regarding British military preparedness. The Select Committee of Privileges ruled
that an MP should not to be threatened with prosecution in this way and that such threats
could constitute a breach of privilege.
Although Parliament has asserted its right to define the scope of parliamentary privilege, the
Bill of Rights is a statute and so article 9 is subject to interpretation by the courts. In general
the courts have interpreted the scope of this privilege widely. In Church of Scientology v
Johnson-Smith [1972] 1 All ER 37 the claimant was not permitted, in libel proceedings, to prove
allegations of malice by relying on statements made by the defendant, an MP, in the House
of Commons, as they were absolutely privileged. In contrast, in Rost v Edwards [1990] 2 QB
460 the High Court held that the Register of Members’ Interests (a records of MPs’ financial
interests) did not fall within the definition of a proceeding in Parliament, though there has
been some debate whether this judgment is correct.
The privilege also extends to official reports of proceedings in Parliament and to committee
proceedings. After litigation in the 1830s, Parliament enacted the Parliamentary Papers Act
1840, which makes it clear that papers published by Parliament attract absolute privilege.
There has also been discussion regarding to what extent parliamentary privilege exists for
communications between constituents and MPs. In Rivlin v Bilainkin (1953) 1 QBD 534 the court
held that where there is no connection to proceedings in Parliament, there is no privilege. On
the other hand, it is believed that where there is a connection to proceedings in Parliament,
privilege will exist.
In addition to the absolute privilege relating to proceedings in Parliament, the courts have
held that certain statements and publications are eligible for qualified privilege (ie they are
protected from defamations action unless malice can be proved). Accordingly in Wason
v Walter (1868) LR 4 QB 73 the court held that fair and accurate reports of parliamentary
proceedings had qualified privilege.
In Pepper v Hart [1993] AC 593 the House of Lords held that where an Act of Parliament is
ambiguous or obscure the courts may take into account statements made in Parliament by
ministers or other promoters of a bill in construing that legislation. Previously, using Hansard in
this way would have been regarded as a breach of parliamentary privilege.
2.6.2 The right to control its own composition and procedures –‘exclusive cognisance’
Parliament has sole control over all aspects of its own affairs: to decide for itself what
procedures it should adopt, whether any of its procedures have been breached and, if so,
what the consequences will be. This has been largely accepted by the courts who will not
question the validity of an Act on the basis that correct procedures were not followed (Pickin v
British Railways Board [1974] AC 765).
Parliament’s right to regulate its own affairs includes disciplinary powers over MPs; eg the
right to suspend them for misconduct. It also includes the right to punish anyone, including
37
non-members, for contempt of Parliament –any conduct that might substantially prevent or
hinder the work of either House. In theory, Parliament may punish contempt by imprisonment,
though this has not occurred since the 19th century. More usually, offenders are given
reprimands. In December 2018 MPs voted to hold the Government in contempt of Parliament.
The Government had refused to release the legal advice given by the Attorney General
Geoffrey Cox to the then Prime Minister, Theresa May, regarding an agreement that the UK
had reached with the EU, despite Parliament passing a motion demanding that it be made
available. After the contempt motion, the Government published the advice. However, there
were no further consequences.
2.6.3 Recent developments

The issue of MPs’ expenses and allowances has attracted significant media attention in
recent years as a result of a scandal during 2009 particularly focusing on expenses claims
by MPs with second homes in London. As a result, criminal prosecutions were started against
a few MPs relating to fraudulent expenses claims. One question the courts had to consider
was whether parliamentary privilege precluded their jurisdiction to deal with such issues. In
December 2010, in R v Chaytor (David) and others [2010] UKSC 52, the Supreme Court held
that neither article 9 of the Bill of Rights 1689 nor the House of Commons’ right to ‘exclusive
cognisance’ of its own affairs affected the Crown Court’s jurisdiction to try MPs on charges
of false accounting in relation to their parliamentary expenses claims. The Supreme Court
regarded article 9 as principally directed at MPs’ freedom of speech and debate in the
Houses of Parliament and in parliamentary committees. Examination of MPs’ expenses claims
by the courts would not according to the Supreme Court adversely affect the core or essential
business of Parliament.
The Supreme Court also said that Parliament had never claimed an exclusive right to deal
with criminal conduct within the precincts of Parliament, even where it relates to or interferes
with parliamentary proceedings.
Largely as a response to the expenses scandal, Parliament enacted the Parliamentary
Standards Act 2009 setting up the Independent Parliamentary Standards Authority (IPSA) to
independently oversee and regulate MPs’ expenses.
Summary
Parliament is one of the key actors in the UK constitution. It is the legislative branch of
government, but also performs other vital functions such as scrutinising the Government’s
policies and also providing the personnel of government.
Most Acts of Parliament are passed by both the House of Commons and the House of Lords.
However, the Parliament Acts 1911 and 1949 provide a procedure that enables the Commons
to bypass the Lords and submit a bill for Royal Assent without the Lords’ consent.
Parliamentary sovereignty is one of the fundamental features of the UK constitution. In theory
this means Parliament can pass any law it wants to and no one (including the courts) can
challenge an Act of Parliament. However, there are limitations on parliamentary sovereignty –
domestic and European.
Domestic limitations include:
• The impact of devolution
• The concept of constitutional statutes that cannot be impliedly repealed
• The ‘manner and form’ debate
• The rule of law
38
The European limitations arise from the UK’s membership of the EU and the incorporation of
the ECHR into UK law. Whilst the UK left the EU on 31 January 2020, an understanding of the
impact of EU law in the UK remains essential.
You should also check your understanding of parliamentary sovereignty by considering the
summary diagram set out in Figure 2.1.
Proceedings in Parliament are absolutely privileged. This is to ensure that parliamentarians
can perform their duties without outside interference.
Figure 2.1 Parliamentary sovereignty
Definition (Dicey):
• Parliament may make or unmake
any law it likes
• No other person or body may override
this legislation or set it aside
Domestic limitations:
• Act of Union
• Devolution
• Grants of Independence History and development:
• Limits on implied repeal (Thoburn ) • Bill of Rights (1689), art 9
• ‘Manner and form’ debate • ‘Enrolled Act’ rule (Wauchope/
• ‘Henry VIII’ powers BRB v Pickin )
• Rule of law (Jackson )
Parliamentary Sovereignty
Examples – statute may:

• Override conventions
European limitations:
(Madzimbamuto )
• European Communities Act 1972,
• Override international
s 2(4), Retained EU law.
law (Cheney v Conn)
• Human Rights Act 1998, ss 3–4 • Alter the constitution (eg HRA
1998)
• Operate retrospectively (Burmah
Oil and War Damage Act)
Express/Implied repeal:
• A later statute may expressly repeal
the contents of an earlier statute.
• A later statute will impliedly repeal the
contents of an earlier statute to the
extent of any inconsistency between
them (Ellen Street Estotes )
39
Sample questions
Question 1
Assume that Parliament passed an Act (fictitious) in 2021 giving voting rights to 16-and
17-year-olds in local government elections in England. Following a change of government,
Parliament passed another Act in 2024 removing the voting rights of 16-and 17-year-olds.
The Act of 2024, however, makes no reference to the Act of 2021. A 16-year-old who has
been barred from voting in a local government election wants to challenge in court the loss
of her voting rights.
Will the challenge by the 16-year-old be successful?
A No, because the Act of 2024 impliedly repealed the inconsistent provisions contained in
the Act of 2021.
B No, because the Act of 2024 contained express words making clear the intention to
repeal the voting rights of 16-and 17-year-olds.
C Yes, because the Act of 2021 is a constitutional statute and cannot be impliedly
repealed.
D Yes, because the Act of 2024 did not expressly repeal the Act of 2021, a constitutional
statute.
E Yes, because the Act of 2024 did not refer to the Act of 2021, a constitutional statute.
Answer
Option B is correct. The Act of 2021, dealing with the franchise for local elections, is clearly a
constitutional statute. In Thoburn, Laws LJ stated that constitutional statutes cannot be impliedly
repealed, so option A is wrong. However, constitutional statutes may be repealed by express
words or words so specific that make Parliament’s intention to repeal very clear. The wording
of the Act of 2024 removing the voting rights of 16-and 17-year-olds seems very clear.
Whilst option C is correct in stating that constitutional statutes cannot be impliedly repealed,
in this instance the words of the Act of 2024 are sufficiently clear to repeal the Act of 2021.
Options D and E are wrong due to the clarity of the wording of the Act of 2024.
Question 2
The Government is considering introducing a bill that it believes will violate Convention
rights.
Which of the following best describes whether the Government can proceed with
the bill?
A The Government cannot proceed with the bill as the Human Rights Act 1998 precludes
the passage of legislation that violates Convention rights.
B The Government cannot proceed with the bill as the Human Rights Act 1998 is a
constitutional statute, which cannot be impliedly repealed.
C The Government can proceed with the bill. However, the minister introducing the bill
must state that, although they are unable to make a statement of compatibility, the
Government nevertheless wishes the House of Commons to proceed with the bill.
D The Government can proceed with the bill. However, the minister introducing the bill
must state that the Government wishes the House of Commons to proceed using the
procedures set out in the Parliament Acts 1911 and 1949.
E The Government can proceed with the bill. Parliament is sovereign and can expressly
or impliedly repeal the Human Rights Act 1998.
40
Answer
The correct answer is C. The Human Rights Act 1998 preserved parliamentary sovereignty as
it permits the Government to proceed with a bill that violates Convention rights, subject to the
minister responsible for the bill making a statement on the proposed legislation’s compatibility
with Convention rights. Accordingly option A is wrong as the 1998 Act does not preclude
legislation that violates Convention rights. Although the 1998 Act is a constitutional statute,
option B is wrong as the doctrine of implied repeal does not prevent Parliament expressly
passing legislation violating human rights.
Option D is wrong because the Parliament Acts 1911 and 1949 enable the House of Commons
to override the House of Lords when enacting legislation. They have no direct connection with
the 1998 Act.
Option E is wrong because the Human Rights Act 1998 has been recognised by the courts as
a constitutional statute and so cannot be impliedly repealed.
Question 3
An MP makes a speech in a parliamentary debate in which she defames a well-known
celebrity. The statement is clearly untrue.
Which of the following best describes whether the celebrity can sue the MP?
A The celebrity cannot sue unless the Speaker of the House of Commons certifies that he
may proceed.
B The celebrity cannot sue as statements in parliamentary proceedings are absolutely
privileged.
C The celebrity can sue because parliamentary privilege does not protect statements that
are clearly untrue.
D The celebrity can sue because the MP has abused parliamentary privilege by making
an untrue statement.
E The celebrity can sue because the courts have decided that defamation proceedings
do not interfere with Parliament’s core business.
Answer
Option B is correct. MPs are immune from civil and criminal proceedings regarding anything
they say in parliamentary proceedings. This is based on article 9 of the Bill of Rights –
freedom of speech.
Option A is wrong because the privilege is absolute and the Speaker cannot waive
it. Whilst there are concerns that MPs may abuse parliamentary privilege by making
defamatory statements, the courts have no jurisdiction even if they do. Options C and D are
therefore wrong.
Option E is wrong, as the reasoning in it relates to the criminal prosecution of MPs for false
accounting in relation to expenses claims.
41
3 Devolution
3.1 The United Kingdom 44

3.2 Devolution 45
3.3 Scotland 45
3.4 Wales 48
3.5 Northern Ireland 50
3.6 The role of the Supreme Court 52
administrations54
SQE1 syllabus
including:
• the status of the devolved institutions and their relationship with Westminster.
purposes only.
Learning outcomes
problems and situations concerned with:
• the creation of the Scottish Parliament, the Senedd Cymru of Wales (the Welsh
Parliament) and the Northern Ireland Assembly;
• the composition of the devolved institutions (legislative and executive);
• the powers of the devolved legislatures;
• the relationship between the devolved institutions and the UK Government and
Parliament; and
• the role of the courts regarding devolution issues.
43
3.1 The United Kingdom

The United Kingdom of Great Britain and Northern Ireland consists of four countries: England,
Wales, Scotland and Northern Ireland. The union evolved over several centuries in stages.
3.1.1 Scotland
Scotland was a separate country with a separate legal system and constitution until the Act
of Union 1707. From the accession of James I (VI of Scotland) in 1603 Scotland had shared
the same monarch as England and Wales. The effect of the Act of Union (and similar Scottish
legislation) was to abolish the separate Parliaments of England and Wales, and Scotland,
and to create a single Parliament of Great Britain, with authority over all three countries. In
certain key areas, for example the legal system, education and local government, Scotland
has remained distinct from England.
3.1.2 Wales
Wales was militarily conquered by Edward I, the English King, in 1283 and after that English
influence steadily grew. Under Henry VIII, the English Parliament passed the Laws in Wales
Acts 1535–1542 (subsequently labelled the Acts of Union) under which Wales was effectively
incorporated into England. The Welsh were granted the same rights as the King’s subjects
in England, and Welsh constituencies were added to the House of Commons. English was
declared to be the official language of the law.
Over the centuries that followed there was only limited constitutional recognition of the
distinctiveness of Wales, and it was not until 1964 that the UK Government created the cabinet
post of Secretary of State for Wales. The Welsh Language Act 1967 permitted the use of the
Welsh language in legal proceedings in Wales.
3.1.3 Northern Ireland

Although the Crown claimed authority over the whole of Ireland from 1541, Ireland retained
its own Parliament until 1800. Before 1800, the Parliament of Great Britain claimed a disputed
authority to legislate for Ireland. The issue was resolved by the Act of Union 1800, which united
the Kingdoms of Great Britain and Ireland, abolished the Irish Parliament and established the
legislative supremacy of the Parliament of Great Britain and Ireland, which had (protestant)
Irish representation.
As a result of armed conflict in Ireland the Government of Ireland Act 1920 divided Ireland
between six of the counties of Ulster in the north, and the rest of Ireland, the south. The 1920
Act provided for the creation of separate Parliaments for Northern and Southern Ireland with
the power to legislate for their respective territories, subject to the exclusion of certain matters
that were reserved to the Westminster Parliament.
However, the Southern Ireland Parliament never came into being as in 1922, following the
signing of the Anglo-Irish Treaty, the southern counties were given Dominion status (similar to
that of Canada for example) making them in effect self-governing as a ‘Free State’ (the Irish
Free State (Constitution) Act 1922). The UK Parliament retained ultimate authority until 1937
when the Irish Government unilaterally adopted an independent constitution. It was not until
1949 that the UK Parliament accepted this loss of supremacy (in the Ireland Act 1949).
From 1922 until 1972 Northern Ireland had its own legislature (the ‘Stormont Parliament’).
Northern Ireland continued to be represented by MPs in the House of Commons, and
Parliament retained supremacy over Northern Ireland. Due to the troubles in Northern Ireland
the UK Government suspended the Stormont Parliament in 1972 and introduced direct rule
pursuant to the Northern Ireland (Temporary Provisions) Act 1972. The Northern Ireland
Constitution Act 1973 subsequently abolished the Stormont Parliament and replaced it with
a Northern Ireland Assembly in an attempt to restore devolved government. However, the
44
Devolution
Assembly collapsed in 1974 and the Northern Ireland Act 1974 then made provision for the
Government of Northern Ireland. The 1974 Act authorised the dissolution of the Northern
Ireland Assembly and transferred its legislative powers to the Queen in Council, ie the UK
Government.
In April 1998 the UK Government agreed proposals for constitutional change with the Irish
Government and various political parties in Northern Ireland. The proposals were submitted
to the electorate in both Northern Ireland and the Irish Republic in May 1998, and approved
by referendum. As a result, Parliament passed the Northern Ireland Act 1998, which devolved
legislative powers to a new Northern Ireland Assembly and created a ‘power-sharing
executive’. Further details are at 3.5.3 below.
However, in January 2017 the Northern Ireland executive collapsed and was not reconstituted
until January 2020.
3.2 Devolution
The United Kingdom is a unitary state. Although it comprises four countries, the Westminster
Parliament is sovereign and can, in theory at least, pass whatever legislation it likes for all
four countries. It is the one principal source of legal power in the UK and has the competence
to legislate for the whole of the UK at all levels. This is in contrast to a federal state where the
constitution gives powers to different levels of government, the federal government and state
governments, as in the USA and Germany. In a federal state the constitution will allocate certain
powers to the federal government, usually those relating to foreign policy, defence, immigration,
tariffs and responsibility for the country’s currency. There will be certain powers that can be
exercised concurrently by the federal and state governments, whilst the constitution will allocate
other powers such as education and ownership of property exclusively to the states. In a modern
state the division of powers between federal and state governments can raise highly complex
legal issues, but in simple terms if the federal government passes legislation on a matter
exclusively allocated to the states, then the courts can strike that legislation down.
The UK remains a unitary state despite devolution. The UK Parliament has devolved legislative
powers in many fields to the Scottish Parliament and Welsh and Northern Ireland assemblies.
However, the crucial difference between the UK and a federal state is that the UK Parliament
has delegated certain powers to the devolved legislatures and legally could revoke those
powers. The UK Parliament remains supreme, and so retains the power to legislate on all
devolved matters and to override the devolved legislatures. Whilst overriding the devolved
legislatures could have very significant political consequences, it is legally possible for the
UK Parliament to do so. Unlike in a federal state, power is not divided between the different
levels of government. Instead, the UK Parliament has delegated some of its powers to the
devolved legislatures without giving up those powers.
The political and legal impact of devolution has nonetheless been significant. The UK has
moved from being a very centralised state with power concentrated in London to one where,
in some areas at least, power is dispersed across the four countries.
3.3 Scotland
The first attempt at devolution in Scotland occurred in the late 1970s. The Scotland Act 1978
provided for the creation of a devolved assembly, subject to confirmation in a referendum.
The Act also required 40% of the eligible electorate to vote in favour of devolution. However,
although a majority of those voting supported the creation of the assembly, they represented
only 32.9% of the eligible electorate.
45
Following the election of a new Labour Government in May 1997, the Referendums (Scotland
and Wales) Act 1997 paved the way for referendums on devolution in Wales and Scotland,
and a substantial majority of Scottish voters supported the creation of a Scottish Parliament.
3.3.1 The Scottish Parliament

The Scotland Act 1998 established the Scottish Parliament and Scottish Executive (now Scottish
Government). The Scottish Parliament has 129 members, known as Members of the Scottish
Parliament (MSPs). Of these, 73 are constituency members and 56 are regional members.
Originally the Scottish Parliament’s constituencies were the same as those for the Westminster
Parliament, but following devolution the number of Scottish Westminster constituencies was
reduced to more accurately reflect the population of Scotland. The constituency MSPs are
elected using the first past the post system, whilst seven regional members are elected from
each of eight Scottish regions. The Scottish Parliament has a Presiding Officer (equivalent to
the Speaker) assisted by two or more deputies. In Scottish parliamentary elections, 16-and 17-
year-olds are able to vote.
Elections for the Scottish Parliament normally take place every four years, although the current
parliamentary term was extended to five years to avoid a clash with a general election
scheduled for the Westminster Parliament. An early (extraordinary) election will take place if
two-thirds of MSPs vote in favour of it or Parliament does not nominate a First Minister within
28 days of an election due to:
• the First Minister resigning or otherwise ceasing to be First Minister; or
• the First Minister ceasing to be an MSP otherwise than by dissolution of Parliament.
The First Minister must resign if the Government loses a vote of no confidence.
The next election is due to take place on 6 May 2021. If an extraordinary general election
takes place, it is in addition to any scheduled ordinary general elections unless taking place
less than six months before the due date of an ordinary general election, in which case the
ordinary election would be cancelled.
The 1998 Act gave the Scottish Parliament the power to pass primary legislation. Once the
Scottish Parliament has passed a bill and it has received Royal Assent, it is known as an Act
of the Scottish Parliament.
3.3.2 Devolved matters

The 1998 Act devolved to the Scottish Parliament all matters other than reserved matters.
This is known as the ‘reserved powers’ model, in that the Scottish Parliament has the power
to legislate on all matters that are not expressly reserved to Westminster. Thus, the Scottish
Parliament has the power to legislate over a wide range of matters, including health,
education, much of civil and criminal law, and local government. Other functions (including
responsibility for the constitution, foreign policy and defence) are retained by the UK
Parliament.
Following the election of a Scottish National Party Government in Scotland, a referendum
took place in 2014 on whether Scotland should become an independent state and leave
the UK. During the campaign, the UK Government promised to devolve further powers to
Scotland should Scottish voters decide against independence. As Scottish voters voted against
independence, the UK Parliament then devolved further powers on the Scottish Parliament.
The Scottish Parliament therefore now has significant tax-raising powers. Since 2015, it has
had the power to levy its own Scottish Landfill Tax (a tax on the disposal of waste to landfill)
in place of the UK Landfill Tax and a Land and Buildings Transaction Tax in place of the UK’s
Stamp Duty Land Tax (SDLT). It also intends to levy Air Departure Tax (ADT) to replace Air
Passenger Duty, a tax levied on passengers departing from UK airports, but ADT had not, at
the time of writing, yet come into force.
46
Devolution
Originally, the Scottish Parliament also had the power to raise or cut income tax by 3p in the
pound, a power it never used. Since April 2016 the Scottish Parliament has had the power to
set a different rate of income tax in Scotland, known as the Scottish Rate of Income Tax (SRIT).
Since April 2017 it has had the power to set the tax band thresholds (excluding the personal
allowance) as well as the rates. This applies to all non-savings and non-dividend income of
Scottish taxpayers.
The Scotland Act 1998 provides that an Act of the Scottish Parliament is not law so far as
any of its provisions are outside the legislative competence of the Parliament, and expressly
specifies which areas are outside its competence. Provisions outside its legislative competence
are those that:
• would form part of the law of any territory other than Scotland;
• relate to reserved matters;
• modify certain enactments, including specified provisions of the Union with Scotland Act
1706 and the Union with England Act 1707 so far as they relate to the freedom of trade,
certain specified provisions of the ECA 1972 (until the end of the transition period), the
EUWA 2018 and the HRA 1998;
• are incompatible with the ECHR and with European Union law (although, following the
UK’s exit from the EU, the position is complex, but there are some restrictions on the
Scottish Parliament’s competence to legislate contrary to retained EU law); or
• would remove the Lord Advocate from their position as head of the systems of criminal
prosecution and investigation of deaths.
The minister in charge of a bill must make a statement that, in their view, the provisions of
the bill are within the Scottish Parliament’s legislative competence. The Presiding Officer must
also make a statement on legislative competence, but this differs from that of the minister in
charge. Whilst the minister’s statement must assert the Parliament’s legislative competence,
the Presiding Officer’s statement may, with reasons, indicate that in their opinion the bill is
outside its competence. A statement by the Presiding Officer in such terms does not preclude
the bill from proceeding. Neither opinion is, however, conclusive on the Parliament’s legislative
competence. Therefore, the Advocate General (the UK Government’s chief adviser legal
adviser on Scots law), the Lord Advocate (see 3.3.3 below) or the Attorney General may
refer to the Supreme Court the question whether a bill or any of its provisions are within the
Parliament’s legislative competence.
The Scotland Act 1998 also provides that where a provision in an Act of the Scottish
Parliament could be read as being outside its legislative competence, such a provision is
to be read as narrowly as is required for it to be within competence, if such a reading is
possible.
3.3.3 The Scottish Government

The Scottish Government is headed by the First Minister who is appointed by the Monarch.
The First Minister will normally be the leader of the largest party in the Scottish Parliament. The
Scottish Government will also include:
• ministers and junior ministers appointed by the First Minister with Parliament’s agreement
and the approval of the Monarch; and
• the Lord Advocate and the Solicitor-General for Scotland (equivalent to the Attorney
General and Solicitor-General in the UK Government) recommended by the First Minister
with Parliament’s agreement but appointed by the Monarch.
3.3.4 The Sewel Convention

In July 1998, during the passage of the Scotland Act 1998 through the UK Parliament, the
UK Government announced that a convention would be established that Westminster would
47
not normally legislate on devolved matters in Scotland without the consent of the Scottish
Parliament. This convention has been labelled ‘the Sewel Convention’ after Lord Sewel, the
minister who first announced the policy. The convention was also extended to Wales and
Northern Ireland, and was incorporated in a series of memorandums of understanding
between the UK Government and the devolved administrations.
There is now statutory recognition of the Sewel Convention, as the Scotland Act 2016 added
a provision to the 1998 Act providing that the UK Parliament ‘will not normally legislate with
regard to devolved matters without the consent of the Scottish Parliament’ (s 28(8)). However,
this does not affect s 28(7) of the 1998 Act, which provides that the creation of the Scottish
Parliament does not affect the power of the UK Parliament to make laws for Scotland. The
Sewel Convention does not affect parliamentary sovereignty. The Supreme Court affirmed
this in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 by holding
that the Sewel Convention, despite its recognition in statute, created no legal obligation on
the UK Parliament to seek the consent of the Scottish Parliament before passing legislation to
leave the European Union. Whilst the Sewel Convention provides a political constraint on the
Westminster Parliament, it is not the role of the courts to police it.
When the UK Parliament wants to legislate on a matter devolved to the Scottish Parliament, it
will, pursuant to the Sewel Convention, seek the Scottish Parliament’s consent before enacting
the legislation in question. The Scottish Parliament will give its consent through Legislative
Consent Motions (LCMs). LCMs are often uncontroversial. For example, suppose the UK
Parliament is considering legislation extending to Scotland that pertains to both devolved and
reserved matters, for example because it deals with technical issues that are sensibly handled
on a UK-wide basis. If the Scottish Parliament supports the legislation, it is more convenient for
the UK Parliament to deal with it. This avoids the need for two pieces of legislation, an Act of
the UK Parliament and an Act of the Scottish Parliament.
Whilst the Scottish Parliament has often been willing to pass LCMs, it has refused to do so
regarding much of the legislation regarding the UK’s withdrawal from the European Union.
For example, it refused consent to the EUWA 2018 and the European Union (Withdrawal
Agreement) Act 2020. Indeed, all three devolved legislatures refused consent to the 2020 Act.
Nonetheless, the UK Parliament proceeded with their enactment.
3.4 Wales
As with Scotland, there was also an abortive attempt at devolution in the late 1970s. Under
the then Labour Government, Parliament passed the Wales Act 1978, which provided for
the creation of a devolved assembly in Wales, provided Welsh voters supported it in a
referendum. However, in the ensuing Welsh referendum, 80% of the electorate voted against
devolution.
Following the election of a new Labour Government in May 1997, in the referendum triggered
by the Referendums (Scotland and Wales) Act 1997, there was a very narrow majority in
favour of devolution. Parliament then enacted the Government of Wales Act 1998, which
established the National Assembly of Wales. The 1998 Act granted the National Assembly
the power to pass delegated legislation in certain specified fields. In contrast to the reserved
powers model, this was termed a ‘conferred powers’ model as it limited the competence
of the National Assembly to those powers specifically granted to it. Initially there was no
distinction between the legislative and executive branches of the National Assembly, but the
Government of Wales Act 2006 split it into two parts, the National Assembly (the legislature)
and the Welsh Assembly Government, now simply called the Welsh Government (the
executive).
48
Devolution
3.4.1 Senedd Cymru/Welsh Parliament

The Senedd and Elections (Wales) Act 2020, an Act of the National Assembly, provided for
the National Assembly to be renamed as Senedd Cymru or the Welsh Parliament, commonly
known as the Senedd. Acts of the Assembly are now known as Acts of the Senedd, whilst
Assembly Members (AMs) are now known as Members of the Senedd (MSs).
The Senedd has 60 MSs, of which 40 are elected to represent the same Welsh constituencies
as are used in elections for the UK Parliament whilst a further 20 are elected to represent
the five electoral regions of Wales, based on a system of proportional representation. Those
aged 16 and 17 years are now able to vote in Senedd elections. Originally, elections were
to be held every four years, but they now take place every five years with the next election
scheduled for 6 May 2021. An early (extraordinary) election will be triggered in similar
circumstances to those in which one would be triggered in Scotland (see 3.3.1 above).
The Government of Wales Act 2006 also paved the way for the extension of the National
Assembly’s legislative powers, as it conferred the power on the National Assembly to pass
primary legislation, known as Acts of the Assembly (now Acts of the Senedd). The procedure
for passing an Act of the Senedd is similar to passing an Act of the UK Parliament, as the
Senedd must pass a bill, which becomes an Act when it receives Royal Assent. However, the
provisions extending the National Assembly’s powers had to be approved by a referendum
before they could come into force. A referendum took place in 2011 and the electorate
voted in favour of them. The 2011 Act gave the Assembly the power to pass legislation in 21
broad subject areas such as agriculture, education, health, the environment, housing, local
government and tourism. There were some exceptions; for example, on health the National
Assembly could not legislate on health and human embryology.
Subsequently the Wales Act 2017 changed the devolution settlement by moving to a reserved
powers model (see 3.3.2 above). This means that the Senedd has the power to pass
legislation on all matters that are not explicitly reserved to the Westminster Parliament, such
as defence, foreign affairs and immigration. This is the same model that is used for Scotland
and Northern Ireland. Whilst some reserved matters are common to all three devolved
legislatures, such as constitutional matters, immigration, defence and foreign affairs, others
are not. For example, criminal justice is largely a devolved matter in Scotland and Northern
Ireland, but a reserved matter in Wales. The Senedd also has some powers regarding
taxation, as in April 2018 two taxes, the Land Transaction Tax (LTT) and Landfill Disposals Tax
(LDT) were devolved. The LTT, a tax on property transactions, replaced SDLT in Wales whilst
LDT replaced the UK Landfill Tax.
Very similar restrictions apply to the legislative competence of the Senedd as apply
to the Scottish Parliament (see 3.3.2 above). Thus, the minister introducing a bill to the
Senedd and the Presiding Officer (the Senedd’s equivalent of the Speaker) must make
statements regarding whether the provisions of the bill are within the Senedd’s legislative
competence. Similarly, the Counsel General (see 3.4.2 below) or the Attorney General may
refer the question whether a bill, or any provision of a bill, is within the Senedd’s legislative
competence to the Supreme Court. Where any provision of an Act of the Senedd could be
read in such a way as to be outside or inside the Senedd’s legislative competence, it should
be interpreted as being inside its competence.
As a result of these changes, a significant body of law pertaining only to Wales is coming into
being. Although England and Wales remain a single jurisdiction, there are now some calls
for Wales to become a separate jurisdiction in its own right, as are Scotland and Northern
Ireland. Indeed, s A2 of the Government of Wales Act 2006 (added by the Wales Act)
recognises the existence of Welsh law, although the provisions fall short of recognising Wales
as a separate jurisdiction, as Welsh law is described as being part of the law of England
and Wales
49
3.4.2 The Welsh Government

The Welsh Government is headed by the First Minister, appointed by the Monarch after having
been nominated by the Senedd. The First Minister recommends for appointment, by the
Monarch, the Counsel General to the Welsh Government (equivalent to the Attorney General
in the UK Government) and appoints up to 12 Welsh ministers and deputy ministers (with the
approval of the Monarch) to serve in the cabinet.
3.4.3 The Sewel Convention

The Sewel Convention discussed at 3.3.3 above also applies to Wales. The Wales Act 2017
added to the Government of Wales Act 2006 provisions giving statutory recognition to the
Sewel Convention; see now s 107(5) and (6). These are identical to those applying in Scotland.
3.5 Northern Ireland

3.5.1 The Good Friday Agreement
Following often violent conflict starting in the late 1960s (often described as ‘the Troubles’),
multi-party negotiations between the British and Irish governments and the main Northern
Irish political parties culminated in the ‘Good Friday Agreement’ (or ‘Belfast Agreement’) of
April 1998. As part of the constitutional settlement for Northern Ireland, the Irish Government
agreed to amend the Irish Constitution to recognise that a united Ireland shall be brought
about only by peaceful means with the consent of a majority of the people in both Northern
Ireland and the Irish Republic. Section 1 of the Northern Ireland Act 1998, which the UK
Parliament enacted following the Good Friday Agreement, provides that Northern Ireland
shall not cease to be part of the UK without the consent of a majority of the people of
Northern Ireland voting in a referendum.
There are three strands to the Good Friday Agreement:
(a) The first strand provides for a democratically elected assembly with a power-sharing
executive;
(b) The second is the North/South Ministerial Council, comprising ministers from Northern
Ireland and the Irish Republic. It co-operates and develops policies on matters of mutual
interest within the island of Ireland in fields such as agriculture, education and the
environment.
(c) The third is the British–Irish Council, comprising representatives from the British and Irish
governments, the devolved administrations (Northern Ireland, Scotland and Wales), the
Isle of Man, Guernsey and Jersey. Its purpose is to promote harmonious and mutually
beneficial relationships between the peoples represented in the Council.
3.5.2 The Northern Ireland Assembly

The Northern Ireland Act 1998 established the Northern Ireland Assembly, granting it the
power to enact primary legislation, known as Acts of the Northern Ireland Assembly. A bill
becomes an Act once the Assembly has passed it and it has received Royal Assent. The 1998
Act in essence followed the reserved powers model, although it uses different terminology.
It grants the Assembly the competence to legislate over ‘transferred matters’, but defines
transferred matters as all matters except for ‘reserved matters’ and ‘excepted matters’.
Excepted matters will remain with the UK Government indefinitely and include international
relations, defence and immigration. Reserved matters are areas where the Northern Ireland
Assembly can legislate with the consent of the Secretary of State and may be devolved in
the future. These include firearms and explosives, financial services and pensions regulation,
broadcasting, disqualification from Assembly membership, consumer safety and intellectual
50
Devolution
property. Policing and criminal justice were originally reserved matters but in April 2010 they
were devolved and so became transferred matters.
The minister in charge of a bill must make a statement on or before its introduction that in
their opinion the bill is within the legislative competence of the Assembly. The Presiding Officer
(the Assembly’s equivalent to the Speaker) must refer to the Secretary of State any bill that the
Presiding Officer considers relates to an excepted or reserved matter.
There is also some entrenched legislation that the Assembly cannot amend, the most
significant being the HRA 1998 and many provisions in the Northern Ireland Act 1998 and,
until the end of the transition period, the ECA 1972; the same restrictions that apply to the
Scottish Parliament’s and Senedd Cymru’s legislative competence regarding retained EU law
apply to the Northern Ireland Assembly.
Legislation that discriminates against any person or class of person on the ground of religious
belief or political opinion is also outside the Assembly’s competence. Also, where primary
legislation is capable of being interpreted as within the Assembly’s legislative competence or
outside a competence, then it should be interpreted as being within a competence.
The Sewel Convention applies to Northern Ireland but, unlike the position in Scotland and
Wales, it does not have express statutory recognition.
The Assembly comprises 90 members known as Members of the Legislative Assembly
(‘MLAs’). Members are elected under the single transferable vote form of proportional
representation. Originally, elections were to be held every four years, but they now take place
every five years. An early (extraordinary) election will take place if two-thirds of MLAs vote in
favour of it or ministerial offices are not filled within the requisite time limit. The next election
must take place on or before 5 May 2022.
3.5.3 Northern Ireland Executive

Unlike most executives, the Northern Ireland Executive does not consist chiefly of members of
the ruling party or parties. Due to the legacy of the Troubles, the Northern Ireland Act 1998
provides for power-sharing between the different communities in Northern Ireland. To ensure
balanced community representation, there are three political designations –‘Nationalist’,
‘Unionist’ and ‘Other’. Following an Assembly election, the Assembly must appoint a First
Minister (‘FM’), deputy First Minister (‘DFM’) and Northern Ireland ministers within 14 days
after the first meeting of the Assembly following an election. If it does not appoint them, the
Secretary of State must propose a date for another (extraordinary) election, though to stop this
happening after the 2017 election the Westminster Parliament passed legislation providing for
extensions of the deadline.
The FM is the nominee of the largest political party of the largest political designation, whilst
the DFM is the nominee of the largest political party of the next largest political designation.
The FM and DFM hold office jointly, so that if one resigns the other ceases to hold office.
Ongoing difficulties with the peace process in Northern Ireland have hindered the practical
achievement of devolution. Northern Ireland reverted to the direct control of the relevant Secretary
of State for a time during 2000 and 2001, and in fact remained under such control from late 2002
for over four years. However, following a breakthrough in negotiations between the main political
parties, the power-sharing executive was restored in 2007. Subsequently, in January 2017 Martin
McGuinness of Sinn Féin resigned as DFM in a protest over what has been called the ‘Renewable
Heat Incentive scandal’ and this led to the collapse of the Northern Ireland Executive. It was
not until January 2020 that the Northern Irish political parties were able to agree on a new FM
(Arlene Foster of the Democratic Unionist Party) and DFM (Michelle O’Neill of Sinn Féin).
The FM and DFM decide the number of ministerial offices, though these cannot exceed 10
without the Secretary of State’s consent. Ministers are appointed by the Assembly based
on the share of seats held by the political parties, save for the Minister of Justice who is
appointed through a cross-community Assembly vote.
51
3.6 The role of the Supreme Court

As explained above, the devolved legislatures only have the competence to pass legislation
on devolved matters; they cannot pass legislation on reserved matters. Both the Scotland Act
and Government of Wales Act provide that whether a provision ‘relates to a reserved matter’
is to be determined by reference to the purpose of the provision, having regard (amongst
other things) to its effect in all the circumstances. There are also other limitations on their
competence; for example they cannot pass legislation infringing the ECHR. Although ministers
introducing bills in the devolved legislatures and their Presiding Officers have the duty to
make statements whether the provisions in bills are within their legislature’s competence, it is
the courts that actually decide on issues of legislative competence. The Supreme Court plays a
particularly significant role in this regard.
There are three ways in which the question whether legislation passed by a devolved
legislature is outside its legislative competence can come before the Supreme Court:
• through a reference by a devolved or UK law officer (including the Attorney General
for England and Wales) to the Supreme Court. The law officers have the power to
refer a bill that the devolved legislature has passed but has not yet received Royal
Assent to the Supreme Court for a ruling on whether the bill is within the legislature’s
competence;
• through an appeal from certain higher courts in England and Wales, Scotland and
Northern Ireland; and
• through a reference from certain appellate courts.
3.6.1 Referring a bill to the Supreme Court

The case of Agricultural Sector (Wales) Bill, Reference by the Attorney General for England
and Wales [2014] UKSC 43 provides an example of a reference to the Supreme Court.
The bill, which the National Assembly of Wales had passed, aimed to establish a scheme
regulating the wages of agricultural workers in Wales. The Attorney General disagreed with
the Assembly’s view that the bill was within the Assembly’s competence, arguing that the
bill did not relate to agriculture but to employment and industrial relations, which had not
been devolved. The Supreme Court held that the bill’s provisions regulating the wages of
agricultural workers did ‘relate to’ agriculture, which was a devolved matter and thus within
the Assembly’s legislative competence. The Supreme Court stated that the bill’s purpose was
to regulate agricultural wages so that the agricultural industry in Wales would be supported
and protected. It did not matter whether the bill might also be capable of being classified as
relating to a matter that had not been devolved, such as employment and industrial relations.
The devolution legislation did not require that a provision should only be capable of being
characterised as relating to a devolved matter.
The case of UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 –
Reference by the Attorney General and Advocate General for Scotland [2018] UKSC 64
was particularly controversial. The Scottish Parliament passed the UK Withdrawal from the
European Union (Legal Continuity) (Scotland) Bill 2018 (the Continuity Bill), aimed at ensuring
legal continuity in Scottish law after the UK’s exit from the EU. The UK Government’s law
officers referred the Continuity Bill to the Supreme Court, arguing that its provisions were
outside the Scottish Parliament’s competence.
The Supreme Court stated that, at the time of the Continuity Bill’s passage, most of its
provisions were within the Scottish Parliament’s legislative competence. However, the UK
Parliament subsequently enacted the EUWA 2018, which provided that some of the matters
covered by the Continuity Bill should become reserved matters. This resulted in many more
provisions of the Continuity Bill being outside the Scottish Parliament’s competence.
52
Devolution
3.6.2 Appeals/references from higher/appellate courts

Appeals from the higher courts and references from appellate courts usually arise in the
context of normal legal proceedings. One such case was Imperial Tobacco Ltd v Lord
Advocate (Scotland) [2012] UKSC 61 regarding ss 1 and 9 of the Tobacco and Primary
Medical Services (Scotland) Act 2010. Section 1 prohibited the display of tobacco products in
a place where tobacco products were offered for sale, whilst s 9 prohibited vending machines
for the sale of tobacco products. Imperial Tobacco applied for judicial review of these
provisions, arguing that the sections in the 2010 Act related to ‘the sale and supply of goods
to consumers’, which were reserved matters. Imperial Tobacco failed at first instance in the
Court of Session and on appeal in the Inner House of the Court of Session, so appealed to
the Supreme Court.
The Supreme Court stated that the rules in the Scotland Act 1998 regarding legislative
competence must be interpreted in the same way as other rules found in a UK statute. Also,
although the 1998 Act was a ‘constitutional statute’, that could not, in itself, be taken as a
guide to its interpretation; it must be interpreted like any other statute. The Supreme Court then
went on to reject the appeal after examining the purpose of the 2010 Act. The purpose of s 1
was to render tobacco products less visible to potential consumers and thereby achieve a
reduction in sales and thus in smoking. The purpose of s 9 was to make cigarettes less readily
available, particularly (but not only) to children and young people, with the aim of reducing
smoking. This had no connection with any reserved matter, and so the 2010 Act was within the
Scottish Parliament’s legislative competence.
The Supreme Court has made it clear that Acts of the devolved legislatures can normally only
be challenged on the grounds that they exceed the legislative competence of the legislature,
for example by covering a reserved matter or violating the ECHR (AXA General Insurance v
Lord Advocate [2011] UKSC 46). They cannot be challenged on common law grounds such
as irrationality, as it would be inappropriate for the judges to substitute their opinions for the
considered views of a democratically elected legislature.
Challenges to legislative competence have also arisen in the context of criminal prosecutions,
as in HM Lord Advocate v Martin [2010] UKSC 10. The Road Traffic Offenders Act 1988
provided that the maximum sentence that a Scottish sheriff (similar to a magistrate) sitting
summarily could impose for the offence of driving while disqualified under the Road Traffic Act
1988 (RTA) was six months’ imprisonment or the statutory maximum fine or both. If the offence
was prosecuted on indictment (triable before a jury), the maximum sentence was 12 months’
imprisonment or a fine or both.
The Scottish Parliament enacted the Criminal Proceedings etc (Reform) (Scotland) Act 2007
increasing the maximum sentence that sheriffs sitting summarily could impose for the offence
of driving while disqualified. The aim of the 2007 Act was to reduce pressure on the higher
courts.
Two individuals were each sentenced by sheriffs to terms of more than six months’
imprisonment for driving while disqualified contrary to the RTA. They both challenged their
sentences, claiming that the relevant provisions of the 2007 Act were outside the legislative
competence of the Scottish Parliament. After the High Court of Justiciary dismissed their
appeals, they appealed to the Supreme Court. The basis of their appeal was that the
Scotland Act 1998 defined, under the heading ‘Road Transport’, the following as reserved
matters: ‘the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988’.
The Supreme Court by a 3–2 majority rejected the appeal. The change was within the
competence of the Scottish Parliament. The purpose of the provisions was to reform summary
justice by reducing pressure on the higher courts by reallocating business within the Scottish
court system; the jurisdiction of a sheriff was a matter of Scots criminal law, and so did not
relate to a reserved matter. It was a simply a change in procedure.
53

administrations
The UK Government and the devolved governments agreed a memorandum of understanding
in 1999 aimed at co-ordinating the overall relationship between them. The memorandum of
understanding has been updated several times since then.
3.7.1 The Joint Ministerial Committee

The 1999 memorandum of understanding created the Joint Ministerial Committee (JMC), a set
of committees that consists of ministers from the UK and devolved governments. Its terms of
reference are to provide central co-ordination of the overall relationship between the UK and
the devolved nations, and to:
• consider non-devolved matters that affect devolved responsibilities (and vice versa);
• consider devolved matters if it is beneficial to discuss their respective treatment in the
different parts of the UK;
• keep the arrangements for liaison between the governments under review; and
• consider disputes between the governments.
The Prime Minister and the First Ministers of the devolved Government attend the JMC when
it meets in its plenary form, with the Prime Minister chairing. Whilst it was envisaged that
meetings would take place annually, this does not always occur. Additional ministers (chiefly
UK cabinet ministers) may attend plenary meetings, with the ministers attending depending
on the subject matter agenda.
3.7.2 Sub-committees of the JMC

The JMC also has sub-committees, but only two are currently active: JMC Europe and JMC EU
Negotiations (JMC (EN)). Previous sub-committees considered topics such as health, poverty
and the knowledge economy.
JMC (EN) was set up specifically as a forum to involve the devolved administrations in
agreeing a UK approach to the UK’s withdrawal from the EU. Ministers responsible for Brexit
preparations in the UK and devolved governments attend.
One of the most notable topics discussed at meetings of JMC (EN) were the Welsh and
Scottish governments’ objections to the European Union (Withdrawal) Bill. This resulted in
the UK Government reaching agreement with the Welsh Government but not the Scottish
Government. More recently, JMC (EN) meetings have included discussions on the readiness of
the UK and devolved governments for a no-deal exit from the EU.
JMC Europe has met regularly since 1999 as a forum for discussions on EU policy matters
that affect devolved policy areas. It provides the devolved governments the opportunity to
contribute to the UK negotiating position on EU policy initiatives, though following the UK’s exit
from the EU its role will diminish.
The JMC also has a formal Dispute Resolution Protocol, introduced in 2010. This provides a
process for resolving disputes. It has only been used occasionally, for example in disputes
concerning the funding of the devolved governments. In July 2017, the Welsh and Scottish
governments tried to open a dispute regarding the Conservative Government’s confidence
and supply agreement with the Democratic Unionist Party, which provided for additional
public spending in Northern Ireland but not in Scotland and Wales. The UK Government did
not respond in public to these complaints, resulting in the Scottish and Welsh governments
expressing dissatisfaction regarding the Protocol’s effectiveness.
54
Devolution
Summary
The process of devolution in its modern form began in 1998 with the enactment by the UK
Parliament of legislation providing for the creation of devolved legislatures and governments
in Scotland, Wales and Northern Ireland. Since 1998, the UK Parliament has granted
increasing powers to the devolved legislatures –the Scottish Parliament, the Senedd Cymru or
Welsh Parliament, and the Northern Ireland Assembly.
Those three legislatures can only pass Acts on devolved matters (or ‘transferred’ areas in
the case of Northern Ireland), with reserved matters (or reserved and excepted in Northern
Ireland) remaining with the UK Parliament. The UK Parliament can still legislate in devolved
areas, but under the Sewel Convention does ‘not normally’ do so without the consent of the
relevant devolved legislature.
In each of the devolved legislatures the minister introducing a bill and the Presiding Officer
must make statements regarding whether the provisions of the bill are within the legislature’s
legislative competence. However, the courts are the final arbiter of whether legislation passed
by the devolved legislatures are within their competence.
Sample questions
Question 1
The minister in charge of a bill being presented to the Scottish Parliament has asked
for advice on whether they can make a statement that the bill is within the Parliament’s
legislative competence. The minister’s main concern is that the bill amends an Act of the UK
Parliament.
Can the minister make a statement that the bill is within the Parliament’s legislative
competence?
A No, because the bill amends an Act of the UK Parliament, which is a reserved matter.
B No, because amending Acts of the UK Parliament is explicitly excluded from the
Scottish Parliament’s legislative competence.
C No, because secondary legislation cannot be used to amend primary legislation.
D Yes, because the Scottish Parliament has full power to amend Acts of the UK Parliament
as Acts of the Scottish Parliament are primary legislation.
E Yes, because the Scottish Parliament has power to amend Acts of the UK Parliament
unless the subject matter of the bill is outside its legislative competence.
Answer
Option E is correct. The Scottish Parliament has power to amend Acts of the UK Parliament
unless the subject-matter of the bill is outside the legislative competence of the Scottish
Parliament.
Option A is wrong as Acts of the UK Parliament are not in themselves reserved matters. The
subject matter of some Acts are reserved matters, but the Acts concerned must be specifically
listed in the devolution legislation. Option B is wrong. Although there are some protected
statutes such as the Human Rights Act 1998, which the Scottish Parliament cannot amend, Acts
of the UK Parliament are not in general protected.
55
Option C is wrong as Acts of the Scottish Parliament are primary legislation. Although the
Scottish Parliament is not sovereign in the way that the UK Parliament is, its Acts are still
primary legislation. In any event, it is possible for secondary legislation to amend primary
legislation. See for example Henry VIII powers discussed in Chapter 2.
Option D is wrong as, unlike the UK Parliament, there are limits on the Scottish Parliament’s
legislative competence.
Question 2
The Senedd Cymru, or Welsh Parliament, has passed an Act of the Senedd promoting
tourism. The Government of Wales Act 2006 (as amended) does not list tourism as a
devolved matter. A business affected by the Act has challenged it by way of judicial review
on the grounds that it is outside the Senedd’s legislative competence and irrational.
Which of the following best describes the approach the courts are likely to take to the
challenge?
A The courts will reject the challenge on the basis of the ‘Enrolled Act’ rule. UK courts will
not allow challenges to primary legislation.
B The courts will reject the challenge unless tourism is listed in the 2006 Act as a reserved
matter.
C The courts will uphold the challenge as the 2006 Act has not expressly devolved tourism
to the Senedd.
D The courts will uphold the challenge if they consider that the Act of the Senedd is
irrational.
E The courts will reject the challenge as only the law officers of the UK Government
or devolved governments have the standing to challenge Acts of the devolved
legislatures.
Answer
Option B is correct. The reserved powers model applies to the Senedd. This means that the
Senedd has the power to pass legislation on all matters which are not explicitly reserved
to the Westminster Parliament. (In fact, tourism is not a reserved matter so the Act will be
within the Senedd’s legislative competence.)
Option A is wrong because the Enrolled Act rule only applies to Acts of the UK Parliament,
which is a sovereign legislature. Option C is wrong, because under the reserved powers
model devolved matters are all those matters except for those that are reserved. Originally,
the conferred powers model applied in Wales; ie the National Assembly only had powers
over the matters expressly devolved to it. However, the reserved powers model now applies
to the Senedd.
Option D is wrong as the Supreme Court has stated that Acts of the devolved legislatures
cannot be challenged on common law grounds such as irrationality. Option E is wrong as
individuals (including businesses) do have the standing to challenge Acts of the devolved
legislatures.
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Devolution
Question 3
The UK Parliament has passed an Act (fictitious) creating a new criminal offence in England
and Wales. The criminal offence relates to a matter that has not been reserved to the UK
Parliament. The Senedd Cymru has not passed a legislative consent motion in relation to
the Act as it opposed the legislation. A man has been prosecuted for committing the new
criminal offence in Wales. The man claims that he has not committed a criminal offence as
the Act creating it is unenforceable in Wales.
Will the courts uphold the man’s claim?
A Yes, because the UK Parliament does not have the competence to legislate on
devolved matters.
B Yes, because the Senedd Cymru has not passed a legislative consent motion.
C No, because the UK Parliament has power to pass Acts covering the whole of the UK
even if the devolved legislature opposes the legislation.
D No, because the Senedd Cymru lacks competence regarding criminal offences even in
relation to devolved matters.
E No, because the Senedd Cymru has not formally vetoed the application of the Act
in Wales.
Answer
Option C is correct. The Westminster Parliament remains sovereign notwithstanding devolution.
It can therefore can pass Acts for the whole of the UK pertaining to devolved matters even in
the face of opposition from the devolved legislatures. Although the Sewel Convention provides
that the UK Parliament will not normally legislate on a devolved matter without the devolved
legislature’s consent, it has the competence to do so as the Sewel Convention is not legally
enforceable. Accordingly, options A and B are both wrong.
Options D and E are wrong as they give incorrect reasons for why the courts will reject the
man’s claim. Contrary to what option D states, the Senedd Cymru does have the power to
create new offences relating to devolved matters. Option E incorrectly suggests that the
Senedd Cymru has a veto over Acts of the UK Parliament; as explained above, the UK
Parliament is sovereign.
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4 Legitimacy, Separation
of Powers and the Rule of Law
4.1 Legitimacy 60
4.2 The rule of law 60
4.3 The separation of powers 65
4.4 The relationship between the executive and the judiciary 72
SQE1 syllabus
including:
• the separation of powers and the rule of law.
purposes only.
Learning outcomes
• explain what is meant by the idea of the ‘rule of law’, using traditional and
modern interpretations, and appreciate the importance of this principle;
• appreciate the extent of judicial and statutory recognition of the rule of law;
• describe the doctrine of the separation of powers and explain the reason(s)
behind its development;
• understand and analyse the relationship between the executive, legislative and
judicial branches of state in the UK; and
• assess the extent to which the UK constitution demonstrates a separation of
powers between the different branches of state.
59
4.1 Legitimacy
The rules that determine whether a particular law has been legally enacted require
justification. Individuals need to know why they should obey the law of the land, even if at
times it may be inconvenient and on occasion disadvantageous to do so. Political power must
be derived from a valid source of authority in terms of shared beliefs on the part of society as
a whole to command the respect of citizens. In addition, the rules of power must ensure that
the people who wield power have the appropriate qualities to do so and that they govern
in the general interest. There need to be constraints on the rulers to ensure that they do not
abuse their power. To protect society, the rulers should not have untrammelled powers; their
conduct should be subject to adjudication by the courts to ensure that they act lawfully.
Events in South Africa during the apartheid era show that it is not enough for correct
procedures to be followed in order for laws to be legitimate. The racially discriminatory laws
that deprived black South Africans of voting rights, denied them the right to own property in
most of the country and enforced rigid segregation were all validly enacted under the South
African constitution, which could be traced back to an Act of the Westminster Parliament, the
South Africa Act 1909. However, the apartheid system blatantly lacked legitimacy as it resulted
in the gross oppression of the black majority by a white minority government.
The rule of law and separation of powers are two key constitutional principles that buttress
the legitimacy of the UK’s constitution. They help to ensure the legitimacy of the laws to which
British citizens and residents are subject.
4.2 The rule of law

You briefly considered what is meant by the ‘rule of law’ in Chapter 1. It has a long history
going back at least to Magna Carta in 1215, which enshrined the principle that not even the
King was above the law. A further noteworthy historical development was the creation of the
writ of habeas corpus, an order by the court that a prisoner be brought before it so that it can
decide whether their detention is lawful and consequently whether they should be released.
The Habeas Corpus Acts 1640 and 1679 codified the procedure to counter the King’s practice
of detaining prisoners and simply asserting his command was sufficient justification for their
detention.
4.2.1 The ‘traditional’ definition of the rule of law

AV Dicey, in his seminal work An Introduction to the Study of the Law of the Constitution (1885),
said that the rule of law in the context of the UK constitution meant the following three things:
1. ‘No man is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of the law established in the ordinary legal manner before the ordinary
courts of the land … It means … the absolute supremacy … of regular law as opposed to
the influence of arbitrary power’
2. ‘… no man is above the law … every man and woman, 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. ‘… the general principles of the constitution (for example, the right to personal liberty, or
the right of public meeting) are with us as a result of judicial decisions … in particular
cases brought before the courts.’
Today, Dicey’s account of the rule of law can be seen as dated, particularly because it
failed to anticipate modern developments in administrative law (ie the law relating to the
control of the exercise of powers by public officials and public bodies –see Chapters 6
and 7). However, it is important to consider Dicey’s approach because, however dated his
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Legitimacy, Separation of Powers and the Rule of Law
interpretation, it has substantially influenced the development of English law. Accordingly,

to give Dicey’s formulation a more modern slant, the table below attempts to ‘translate’ his
formulation into contemporary language
Dicey’s formulation Present-day values/constitutional requirements
1. ‘No man is punishable or can be This element has a number of connotations:

lawfully made to suffer in body or goods • Legal certainty
except for a distinct breach of the law Citizens should be able to rely on laws that are
established in the ordinary legal manner both made and set out clearly. There should be no
before the ordinary courts of the land … arbitrary exercise of power, where the Government
It means… the absolute supremacy … of disregards the law and acts in any manner it
regular law as opposed to the influence sees fit.
of arbitrary power’ • Personal liberty
Citizens should be detained and subject to
punishment only if they have broken the law.
• Due process of law
Citizens have a right to fair procedures for
determining civil or criminal liability.
2. ‘… no man is above the law…every This element is concerned with equality before the
man and woman, whatever be his rank law. This means not only equality between citizens,
or condition, is subject to the ordinary but also between public officials and citizens. Thus:
law of the realm and amenable to the • L ike cases should be treated in like ways; there
jurisdiction of the ordinary tribunals’ should be no unjustified discrimination (for
example, on the grounds of race or gender).
• S tate officials have no exemption from legal
control or accountability as a result of their
position, and are subject to the ‘ordinary’ law of
the land (see Entick v Carrington in Chapter 1).
•M embers of the executive should not legislate
or adjudicate in court cases (this links to the
principle of the separation of powers).
3. ‘… the general principles of the Dicey sees the courts as protectors of individual
constitution (for example, the right to liberty, thereby developing constitutional principles
personal liberty, or the right of public through ‘ordinary’ judicial decisions (this links
meeting) are with us as a result of judicial to case law being an important source of
decisions … in particular cases brought constitutional law –see Chapter 1).
before the courts.’
Now that we have given a more up-to-date meaning to Dicey’s view of the rule of law, you
also need to understand why upholding the rule of law is such an important principle of the
UK constitution.
4.2.2 The importance of the rule of law

Observing the rule of law should ensure that:
(a) the Government is prevented from exercising arbitrary power (because ‘regular’ law is
supreme);
(b) the Government can be held to account for its actions (through the process of judicial
review, in which the courts ensure that the Government does not exceed or abuse the
powers that it has been granted);
61
(c) the law is set out clearly for all citizens and is made properly following a set procedure;
(d) the law does not operate retrospectively (ie someone should not be punished for an act
that was not a crime at the time he carried out that act, if that act subsequently becomes
a crime);
(e) there is equality before the law for all citizens;
(f) there is equal access to the law and the Government or state has no special exemptions
or ‘get-outs’;
(g) citizens have a means of legal redress for their grievances; and
(h) the independence of the judiciary is maintained, thereby preserving the separation of
powers and preventing the Government from exercising its powers in an arbitrary way.
4.2.3 Modern interpretations of the rule of law

One of the most authoritative modern definitions of the rule of law was provided by Lord
Bingham of Cornhill, an eminent British judge who was successively Master of the Rolls, Lord
Chief Justice and Senior Law Lord.
Lord Bingham said that the core of the existing principle of the rule of law was as follows:
‘all persons and authorities within the state, whether public or private, should be bound
by and entitled to the benefit of laws publicly and prospectively promulgated and publicly
administered by the courts.’
Lord Bingham broke this definition down into eight sub-rules:
1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the
law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without excessive cost or delay, civil disputes that
the parties cannot resolve themselves.
6. Ministers and public officers must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without exceeding
the limits of such powers.
7. The adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law.
In some areas Lord Bingham’s definition overlaps with that of Dicey (for example, the idea
that laws must be certain and the concept of equality before the law), whilst in other areas
Lord Bingham goes a little further (for example, the importance of the protection of human
rights and compliance with international law).
4.2.4 The contemporary relevance of the rule of law

Although, as we have seen so far in this chapter, the rule of law is a concept open to varying
interpretations, it remains fundamental to an understanding of the UK constitution.
4.2.4.1 Judicial and statutory recognition

In recent years, there has been an explicit recognition in both statute and case law of the
continuing significance of the rule of law. For example:
62
• Section 1 of the Constitutional Reform Act 2005 (a statute that you will look at later in this
chapter) acknowledges the importance of ‘the constitutional principle of the rule of law’
although, perhaps because of the difficulties of definition, does not seek to define it.
• In R (Jackson) v Attorney General [2005] UKHL 56, Lord Hope spoke of the rule of law
enforced by the courts as ‘the ultimate controlling factor on which our constitution is
based’.
Whilst these examples may seem academic, the courts have also been willing to use the rule
of law to justify their judgments.
4.2.4.2 The right to liberty

The case of A and others v Secretary of State for the Home Department [2005] 2 AC 68 (often
referred to as the ‘Belmarsh case’) is a significant case in showing the importance that the
judiciary attaches to the rule of law. The case involved a challenge to, amongst other things,
provisions in the Anti-terrorism, Crime and Security Act 2001 enacted in the aftermath of the
9/11 terrorist attacks in the USA. The 2001 Act permitted foreign nationals suspected of being
involved in terrorist activities (but against whom there was insufficient evidence to bring
criminal proceedings) to be detained indefinitely without trial.
The House of Lords held that such provisions breached Article 5 (right to liberty and security)
and Art 14 (protection from discrimination) of the ECHR in so far as it permitted the detention
of suspected terrorists in a way that discriminated against them on the ground of nationality,
since there were British suspected terrorists who could not be detained under the 2001 Act.
The House of Lords issued a declaration of incompatibility pursuant to s 4 of the HRA 1998
regarding the offending provisions in the 2001 Act.
This case emphasises the significance of the rule of law, Lord Nicholls stating that ‘indefinite
imprisonment without charge or trial is anathema in any country which observes the rule of
law …. Wholly exceptional circumstances must exist before this extreme step can be justified’.
The burden on the Government to justify imprisonment without charge was therefore a very
heavy one, which it could not discharge.
4.2.4.3 The right to a fair hearing

The right to a fair trial is a fundamental aspect of the rule of law and the courts have been
keen to uphold the principle, as shown by the decision of the House of Lords in R (Anderson)
v Secretary of State for the Home Department. This case involved an offender who had been
convicted of murder and had been given a mandatory life sentence. A mandatory life sentence
is accompanied by a tariff, a minimum term that the prisoner must serve before they may be
considered for release on licence. At the time of the case, although the trial judge recommended
the tariff, s 29 of the Crime (Sentences) Act 1997 gave the Home Secretary the power to set it.
In Anderson the Home Secretary increased the tariff beyond that recommended by the trial
judge. The claimant challenged the increase in tariff, arguing the Home Secretary’s power was
a breach of Article 6(1) (the right to a fair trial) of the ECHR via the HRA 1998.
In his speech, Lord Steyn stated that ‘the proposition that a decision to punish an offender by
ordering him to serve a period of imprisonment may only be made by a court of law … is a
principal feature of the rule of law on which our unwritten constitution is based’. Parliament
had overridden this principle by enacting s 29 of the 1997 Act but had also, through enacting
the Human Rights Act, given the courts the power to decide upon the compatibility of s
29 with Article 6(1) of the ECHR. Accordingly, the House of Lords issued a declaration of
incompatibility regarding s 29. Parliament subsequently removed the power to set the tariff
from the Home Secretary.
As well as illustrating the significance of the rule of law, this case also shows how the Human
Rights Act enables the courts to uphold the principle.
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4.2.4.4 Access to justice

The Supreme Court’s decision in R (UNISON) v Lord Chancellor [2017] UKSC 51 also shows
the continuing significance of the rule of law in its jurisprudence. The Lord Chancellor
had adopted the Employment Tribunals and the Employment Appeal Tribunal Fees Order
2013, SI 2013/1893 (‘the Fees Order’) relating to proceedings in employment tribunals and
the Employment Appeal Tribunal. Prior to the Fees Order, claimants were able to bring
proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal
without paying any fees. The trade union, UNISON, challenged the Fees Order by way of
judicial review on various grounds, including their effect on access to justice. The Supreme
Court held that the Fees Order was unlawful.
Lord Reed emphasised the link between access to justice and the rule of law, stating that the
constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure
that the courts are able to apply and enforce the laws created by Parliament and also the
common law created by the courts themselves. To enable the courts to perform that role,
people must in principle have unimpeded access to them.
The Supreme Court held that in order for the fees to be lawful, they had to be set at a level
that everyone can afford, taking into account the availability of full or partial remission. Even
if the fees were affordable, they might still prevent access to justice if they rendered it futile
or irrational to bring a claim. This might include situations where the fee was excessive in
comparison to the amount at stake or the remedy sought was not financial (such as the right
to written particulars of employment), which had the effect of preventing a sensible person,
with no guarantee of fee reimbursement and success, from pursuing a claim. Accordingly, the
Fees Order was unlawful as it effectively prevented access to justice.
4.2.4.5 Equality before the law

The case of M v Home Office [1993] UKHL 5 also illustrates the fundamental nature of the rule
of law. M, a citizen of Zaire, had applied for political asylum in the UK, but his application
was refused and he was informed that he would be deported. He applied to the High Court
for judicial review of the refusal and the High Court judge asked for M’s deportation to be
delayed while he considered the case. However, M was already on a plane from London to
Paris on his way to Zaire. When the judge was told about the situation, he made an interim
order for M’s return to the UK. Home Office officials arranged for M’s return, but the Home
Secretary cancelled those arrangements, believing he had acted legally in ordering M’s
deportation and that the judge did not have the legal power to make an interim order against
a minister of the Crown.
In subsequent contempt proceedings lodged on behalf of M, the judge held that the Crown
Proceedings Act 1947 preserved the Crown’s immunity from injunction. On appeal, the Court
of Appeal held that the Home Secretary was in contempt. On his appeal, the House of
Lords held that injunctions were available against officers of the Crown and that the Home
Secretary was in contempt of court in ignoring them, rejecting his argument that contempt and
injunctions did not apply to the Crown. However, there had been a genuine misunderstanding
on the Home Secretary’s part and although he was in contempt of court, no penalty other
than the finding of contempt was imposed.
In his speech Lord Templeman criticised ‘the argument that there is no power to enforce the
law by injunction or contempt proceedings against a minister in his official capacity’ as it
would ‘establish the proposition that the executive obey the law as a matter of grace and not
as a matter of necessity, a proposition which would reverse the result of the Civil War’.
Lord Woolf stated in his speech that ‘the object of the exercise is not so much to punish an
individual as to vindicate the rule of law by a finding of contempt’.
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The notion of equality before the law and the rule of law were clearly central to the judgment
of the House of Lords. The UK constitution does not grant special privileges or immunities to
officers of the state.
4.2.4.6 The limits of the rule of law

There is a potential tension between parliamentary sovereignty and the rule of law. In theory
Parliament can pass any Act it chooses, no matter how arbitrary or oppressive. Indeed,
there have been obiter comments by prominent judges suggesting that that the courts might
strike down legislation that is contrary to the rule of law, such as abolishing judicial review;
see 2.5.1.6. The examples given in these obiter comments have been extreme, and the
courts have generally acknowledged parliamentary sovereignty by following the ‘principle of
legality’, which Lord Steyn expounded authoritatively in R v Secretary of State for the Home
Dept, ex p Simms [1999] UKHL 33. Lord Steyn affirmed parliamentary sovereignty by stating
that Parliament can, if it chooses to do so, legislate contrary to fundamental principles of
human rights. However, he continued that the principle of legality requires Parliament to
squarely confront what it is doing and accept the political cost. Fundamental rights cannot be
overridden by general or ambiguous words. This assumption can be displaced only by ‘clear
and specific provision to the contrary’.
However, there are limits to the extent to which the courts will uphold the rule of law.
In R (Corner House Research and Another) v Director of Serious Fraud Office [2008] UKHL
60, the Director of the Serious Fraud Office decided to halt an investigation into the alleged
corruption of a company engaged in arms trading with Saudi Arabia following a threat by
Saudi Arabia to end co-operation in counter-terrorism initiatives if the investigation continued.
Ministers advised the Director that if the investigation continued those threats would be carried
out with grave consequences both for the arms trade and for the safety of British citizens and
service personnel. The Court of Appeal held the decision was unlawful, constituting a breach
of the rule of law. On appeal, the House of Lords accepted that the Director’s decision had
been taken with extreme reluctance, and that he had acted lawfully in deciding that the public
interest in pursuing an important investigation into alleged bribery was outweighed by the
public interest in protecting the lives of British citizens.
Nonetheless, it is clear that the rule of law is a doctrine that forms a key element of part of
the UK constitution. There is near universal acceptance that laws should be enacted properly
and that they should be clear. Laws should not be applied arbitrarily, no one is above the law
and that no one may be punished other than in accordance with the law. Some definitions of
the rule of law also have regard to the content of the law, including the extent to which the
law upholds human rights, when analysing the extent to which a state complies with the rule
of law. Although there may be some debate at the margins, it is evident that the rule of law is
integral to the UK constitution.
4.3 The separation of powers

The separation of powers is closely linked to the rule of law. An independent judiciary is an
essential element of the rule of law and the separation of powers helps to secure judicial
independence. Similarly, checks on the Government’s actions help to prevent the arbitrary
exercise of power.
4.3.1 Development of the doctrine

Although there is no formal separation of powers within the UK, this doctrine is acknowledged
as one of the principles that underpin the constitution of the UK. You may remember from
Chapter 1 that the doctrine of the separation of powers identifies three branches of state:
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• the legislature (or parliament), which makes the law;

• the executive (or government), which implements or administers the law; and
• the judiciary (or courts), which resolves disputes about the law.
The doctrine holds that, as each branch of state has a different role to play within the
constitution, there should be no overlap between the branches, either in terms of their
functions or in terms of their personnel. If such an overlap were to exist, this would represent
an unhealthy concentration of power, which could lead to arbitrary or oppressive government.
The doctrine also holds that, as each branch of state cannot in reality operate in isolation
from the other branches, there should be a system of ‘checks and balances’ in place so that
one branch can be kept ‘in check’ by the other branches, resulting in a ‘balance of power’
between the different branches.
Hilaire Barnett has summed up the doctrine as follows:
The essence of the doctrine is that there should be, ideally, a clear demarcation of
personnel and functions between the legislature, executive and judiciary in order that
none should have excessive power, and that there should be in place a system of
checks and balances between institutions.
Hilaire Barnett, Constitutional and Administrative Law, 13th edn (Routledge, 2019)
4.3.2 The United States of America –the ‘Model’

The constitution of the United States of America is based firmly on preserving a separation
of powers between the different branches of state. One of the aims of the framers of the US
constitution was to avoid the dominance of the executive, which they perceived to be one of
the problems with the UK constitution.
For example, the executive branch of state in the USA is made up of the President, the Vice
President, the members of the President’s cabinet, and the various government departments
and agencies. The executive is under a constitutional duty to ensure that ‘the laws be faithfully
executed’. Members of the executive cannot also be members of Congress, which means
that there is no overlap in personnel between the executive and legislative branches of state.
Neither the President nor his advisers may sit in Congress (the legislative branch) or take
part in Congressional votes and debates. This is in stark contrast to the UK where there is
considerable overlap between the executive and legislature.
Another stark contrast with the UK relates to the judiciary. The judicial branch of state is made
up of the various federal courts, but particularly the Supreme Court. The Supreme Court’s
function is to settle disputes arising under the law and constitution of the USA. The Supreme
Court may strike down either actions of the executive or legislation enacted by Congress if
such actions or legislation are unconstitutional. In the case of Marbury v Madison 5 U.S.
(1 Cranch) 137 (1803), the Supreme Court affirmed the doctrine of judicial review, establishing
the courts’ authority to declare unconstitutional acts of the legislative or executive branches of
state. This means that the US Supreme Court, unlike UK courts, has the power to strike down
statutes.
4.3.3 Separation of powers in the UK constitution?

Unlike in the USA, there is no formal separation of powers under the UK constitution. The
standard rationale for this is that, unlike in the USA, there has been no formal ‘break’ in the
constitutional history of the UK. In the USA, the constitution was written in 1787, shortly after
the end of the War of Independence from Great Britain. One of the key objectives of the
‘founding fathers’ who prepared the constitution was to write a document that would ensure
the separation of powers between the executive, legislative and judicial branches of state,
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thereby preventing the exercise of tyrannical and arbitrary government by the executive (which
they saw as the weakness of the British constitution).
The absence of a ‘break’ in the constitutional history of the UK means that our constitution has
developed on an ad hoc basis and remains unwritten or uncodified. As a result of having an
unwritten constitution, no formal system or arrangement has been put in place to ensure that
the separation of powers is maintained. Instead, a partial separation of powers between the
three branches of state exists, together with a largely informal system of checks and balances.
Although there is no formal separation of powers within the UK constitution, you saw in
Chapter 1 that it is possible to identify the persons or bodies that make up the branches of
state in the UK.
The executive branch of state is made up of the Queen, the Prime Minister and other
government ministers, the civil service, and the members of the police and armed forces.
You may come across the terms ‘central government’ and ‘the Crown’ in connection with the
executive. Central government comprises the Queen, government ministers and members of
the civil service. The Crown is the central government plus members of the police and the
armed forces.
The legislative branch of state is made up of the Queen, the House of Lords and the House of
Commons.
The judicial branch of state is made up of the Queen, all legally qualified judges, and
magistrates.
Although the Queen is part of all three branches of state, her role is largely ceremonial. The
Government is legally the ‘Queen’s Government’, although in reality government ministers
are appointed by the Prime Minister and, by convention, most of the Queen’s legal powers
are exercised by the Government on her behalf. You considered some examples of this in
Chapter 1.
The Queen is part of the legislature because she must give Royal Assent before a bill that has
passed through Parliament becomes an Act of Parliament. Although legally the Queen may
refuse to give Royal Assent to a bill, by convention she will always give this (see Chapter 1).
The Queen is also head of the judiciary. Judges are the ‘Queen’s judges’ and the courts
are the ‘Queen’s courts’. That is why criminal cases are always cited: ‘R v …’ –‘R’ stands for
‘Regina’ (or ‘Rex’) or the Crown. The Queen does not, however, exercise any judicial power.
In the rest of this chapter you will consider the degree of separation and overlap between the
branches of state in the UK.
4.3.4 The relationship between the executive and the legislature

4.3.4.1 Overlap between the executive and the legislature
There are statutory limitations on members of the executive also being members of the
legislature. The House of Commons Disqualification Act 1975 supports to a limited extent the
separation of powers between the executive and the legislature.
Section 1 disqualifies certain members of the executive (civil servants, members of the armed
forces, and members of the police) from being MPs.
Section 2 limits the number of government ministers who may sit in the House of Commons to
95 (although you might contrast this with the position in the USA, where virtually no members
of the executive may also be a member of Congress).
Despite the provisions of the 1975 Act, there is clearly some overlap between the membership
of the executive and the legislature, because government ministers can also be MPs (by
convention the majority of government ministers are members of the House of Commons and
the remainder are members of the House of Lords).
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Some commentators have gone further, however, and have suggested that the Government
effectively controls Parliament. In 1976, Lord Hailsham, a former Lord Chancellor,
characterised the system of government in the UK as being an ‘elective dictatorship’.
The phrase ‘elective dictatorship’ means that, although the people elect the Government
whenever a general election takes place, once that Government has been elected it can
generally act as it pleases and get Parliament to enact its legislative programme in full.
The only limitation on the Government is that it must submit itself for re-election at the next
general election. Lord Hailsham was suggesting that Parliament does not really play a role in
debating or considering legislation proposed by the Government, but merely ‘rubber stamps’
the Government’s legislative plans.
Lord Hailsham described the UK system of government as operating in this way because:
1. Our current ‘first past the post’ electoral system means that normally most MPs in the
House of Commons will be members of the political party that forms the Government.
(Although this is the usual position and now pertains following the December 2019
general election, following the general election in May 2010 no single party obtained
sufficient seats to form an overall majority. As a result, the UK had a coalition government
comprising the Conservative and Liberal Democrat parties between 2010 and May 2015.
Similarly, no party gained an overall majority in the June 2017 general election. The
Conservative Party obtained the largest number of seats and entered a confidence and
supply agreement with the Democratic Unionist Party. This gave it a slim overall majority,
but it only applied to votes on the Queen’s speech; the budget; legislation relating to
Brexit and national security.)
2. The Government therefore has an in-built majority in the House of Commons, particularly
given that most members of the Government (including the Prime Minister and other
cabinet ministers) are also MPs.
3. The Government has significant control over the parliamentary timetable, and most of
Parliament’s time is devoted to the Government’s legislative programme.
4. Most of the bills considered by Parliament are introduced by government ministers,
and the overwhelming majority of these bills will be passed by Parliament because the
majority of MPs represent the governing party.
5. The constitutional convention that the Government would resign if defeated in the House
of Commons on a confidence vote or a major part of its legislative programme meant
that governments were able to persuade their backbench MPs to support government
legislation, even if those MPs were reluctant to do so. The Fixed-term Parliaments Act
2011 has a similar effect. If the Government is defeated on a motion of no confidence, the
House of Commons will be dissolved and an early election called unless within 14 days
an alternative Government is formed or the incumbent Government is able to regain the
confidence of the House. The Prime Minister is also expected to resign if he or she no
longer has the confidence of the House and an alternative Government does have the
confidence.
6. Huge pressure is placed on MPs from the governing party to support bills introduced by
the Government through the government whips.
7. Although Parliament enacts primary legislation, many laws take the form of delegated or
subordinate legislation. This is legislation made by government ministers under powers
delegated by Parliament and there are only limited opportunities for Parliament to
scrutinise such legislation.
8. Acts of Parliament legislation will often contain what are referred to as ‘Henry VIII’ powers
(so called after the 1539 Statute of Proclamations, in which King Henry VIII gave his own
declarations the same force as legislation enacted by Parliament). Such powers enable
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the Government to amend or repeal primary legislation by way of delegated legislation,

without reference back to Parliament.
9. Although the Government will not necessarily have a majority of the peers in the House
of Lords, the House of Lords is weak in comparison to the House of Commons and
is unable to keep the Government ‘in check’. There is a constitutional convention, the
Salisbury Convention, that the House of Lords will not reject a bill giving effect to a
significant manifesto commitment of the democratically elected Government. In addition,
the Parliament Acts of 1911 and 1949 limit the power of the House of Lords to reject a bill
that has been passed by the House of Commons (see Chapter 2.2.3.2).
There have been rule of law and separation of powers concerns regarding the Coronavirus
Act 2020 and secondary legislation enforcing the lockdown to prevent the spread of the
COVID-19 virus. Whilst most commentators have accepted the need for emergency legislation
to deal with the pandemic, some have thought that there has been inadequate parliamentary
scrutiny of the measures that the Government has taken.
4.3.4.2 Parliamentary scrutiny of the executive

As the previous section shows, there is a significant degree of overlap between the executive
and the legislature in the UK. Further, although it is Parliament that enacts legislation,
Parliament is effectively legitimising legislative proposals that have been put forward by the
Government. Nevertheless, Parliament still has a role to play in scrutinising the Government
and holding it to account for its actions. The following are examples of some checks and
balances that enable Parliament to fulfil this role.
• Questions. Time is set aside each day for MPs to put oral questions to ministers, and MPs
may also ask written questions. The Prime Minister answers questions for 30 minutes each
Wednesday.
• Debates. The ‘standing orders’ of the House of Commons provide for ‘emergency
debates’ on matters that need urgent consideration. The Speaker decides whether the
matter should be debated. ‘Standing orders’ also allocate time to the official Opposition
in which it may initiate debates. All government bills are debated by Parliament at their
second reading (see Chapter 2). The ‘standing orders’ also allow for brief debates to
take place on topical issues of regional, national or international importance.
• General committees (including public bill committees). All government bills are referred
to a public bill committee of MPs after the main principles of the bill have been debated.
The purpose of the committee is to review the detailed clauses of the bill and make such
amendments as are necessary. Additional general committees exist to discuss matters in
specific areas, for example the Scottish Grand Committee, the Welsh Grand Committee,
the Northern Ireland Grand Committee, committees on delegated legislation and
European documents.
• Select committees. These committees are appointed for the life of a Parliament
to examine the ‘expenditure, administration and policy’ of the main government
departments. Only backbench MPs serve on them. The Government has a majority on
each, but the chairman may be a member of the Opposition. The committees report to
the House of Commons and it is for the House to consider any necessary action. Select
committees will often question government ministers (including the Prime Minister).
• Parliamentary and Health Service Ombudsman (‘the Ombudsman’). The Ombudsman
combines two functions, the Parliamentary Commissioner for Administration (PCA) and
Health Service Commissioner for England. The Ombudsman is appointed by the Crown,
and in their capacity as PCA their main function is to investigate the complaints of
persons who have suffered injustice in consequence of ‘maladministration’ by government
departments in exercise of their administrative functions. However, the Ombudsman’s
decisions are not binding on government ministers.
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• MPs may reject government bills. In normal times it is rare for a government bill to suffer
a defeat in the House of Commons. Nevertheless, this does occasionally happen, for
example in March 2016 when the Government was defeated in its plan to extend Sunday
opening hours.
The period between the June 2017 and December 2019 general elections during which
there was a Conservative Party minority government was, however, highly unusual. The
Government suffered a large number of defeats during this period, in particular relating to
its Brexit policies. Indeed, Parliament passed two Acts, the European Union (Withdrawal)
Act 2019 and the European Union (Withdrawal) (No 2) Act 2019 despite government
opposition. MPs opposed to the Government’s policies on the UK’s withdrawal from the
EU voted to suspend the normal standing orders giving priority to government business.
These Acts required the Government in certain circumstances to seek limited extensions
to the UK’s membership of the EU to prevent the UK from leaving without a withdrawal
agreement in place.
In addition to the formal mechanisms by which Parliament holds the Government to account
for its actions, the constitutional conventions of individual ministerial responsibility and
collective cabinet responsibility (which you considered in Chapter 1) also play an important
role here. Legally, government ministers are not accountable to Parliament for their decisions
or actions. However, through the operation of these conventions, accountability exists.
Under the convention of individual ministerial responsibility, ministers are responsible to
Parliament both for the running and proper administration of their respective departments
and also for their personal conduct. There must be no conflict of interest between a minister’s
public duties and his or her private interests. A minister who breaches this convention should
resign. Examples of ministers resigning following a breach of this convention include:
• In 1982, the Foreign Secretary and two junior ministers resigned over allegations that the
Foreign Office should have foreseen the Argentine invasion of the Falklands Islands and
planned accordingly.
• In 2004, David Blunkett resigned as Home Secretary after he had an affair with a married
woman and then had her nanny’s visa application fast-tracked. In 2005 he resigned as
Work and Pensions Secretary, following allegations concerning financial interests about
which he had failed to make proper disclosure.
• In 2011, Liam Fox resigned as Defence Secretary after he had acknowledged that he
had ‘mistakenly allowed’ the distinction between his personal and professional duties to
become ‘blurred’. He had permitted a lobbyist who was a close friend to attend official
meetings with him, travel with him on overseas trips and to hand out business cards
describing himself as Mr Fox’s adviser even though he had no official role.
• In 2017 Priti Patel resigned as Secretary for State for International Development following
unauthorised meetings with Israeli government officials about which she had misled the
Foreign Secretary and Prime Minister.
• In 2018 Amber Rudd resigned as Home Secretary in connection with the Windrush
deportation scandal. She had misled MPs over whether the Home Office had targets for
removing illegal immigrants.
The convention of collective cabinet responsibility provides that the cabinet is collectively
responsible to Parliament for the actions of the Government as a whole, and the Government
must retain the confidence of the House of Commons.
This convention also holds that ministers must resign if they wish to speak out in public against
government policy. An example of this occurred in 2003, when both Robin Cook and Clare
Short resigned as cabinet ministers in order to voice in public their opposition to the war in
Iraq. Further examples are the resignation of Baroness Warsi as Foreign Office Minister in
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2014 in protest at government policy on Gaza, and Iain Duncan Smith’s resignation as the
Secretary of State for Work and Pensions in 2016 in protest at the Government’s proposed
cuts to disability benefits. There were 36 ministerial resignations between June 2018 and May
2019, most relating to Theresa May’s Brexit policies. They included David Davis and Dominic
Raab, who had both been Secretaries of State for Exiting the EU, and Boris Johnson who was
the Foreign Secretary at the time.
Note that it is open to the Prime Minister to suspend the operation of the convention of
collective cabinet responsibility, as David Cameron did in the run up to the EU referendum in
June 2016.
4.3.4.3 Parliament and the royal prerogative

There are some areas of government activity over which Parliament has historically been
unable to exercise effective scrutiny. These are predominantly powers that the Government
exercises under the royal prerogative, and include matters of national security, the defence
of the realm and the deployment of the armed forces (there is, for example, no legal
requirement for the Government to obtain parliamentary approval before sending troops into
action). You will see later in this chapter that these are also areas where the powers of the
courts to review actions taken by the Government are limited, because the courts consider
such areas to be ‘non-justiciable’ (ie not areas in which the courts should properly become
involved).
However, there are indications that Parliament is taking on a greater role in these areas. For
example, in 2003 the Government obtained parliamentary approval before sending troops to
Iraq. Also in 2013 the Government recalled Parliament to vote and debate possible military
action in Syria. Following a ‘No’ vote in the Commons, the Prime Minister acknowledged
that the Government would not become involved in military action in Syria. Subsequently, in
September 2014, the Government sought and obtained parliamentary approval for air strikes
against Isis targets in Iraq, but not in Syria.
In contrast, in 2011 the Government only sought approval for the deployment of forces in
Libya retrospectively, three days after the start of British participation, whilst the deployment
of British military personnel in Mali in 2013 was not the subject of a parliamentary debate
or vote.
Overall, though, it appears that there is a new convention that, before the Government
commits troops to military operations, the House of Commons should have an opportunity to
debate the issue. Indeed, the Cabinet Manual states:
In 2011, the Government acknowledged that a convention had developed in
Parliament that before troops were committed the House of Commons should have
an opportunity to debate the matter and said that it proposed to observe that
Convention except where there was an emergency and such action would not be
appropriate.
The (then) Prime Minister repeated this commitment in relation to Libya in Parliament in
March 2016.
Like many constitutional conventions, however, the exact scope of this new convention
is unclear. In April 2018 the Prime Minister authorised a military airstrike against Syria
without seeking prior parliamentary approval. She stated that this was due to the fact that
the situation was an emergency. However, the decision not to seek prior approval was
controversial, and some argued that the Prime Minister had acted in breach of the convention.
There are also legislative restrictions on the exercise of the royal prerogative. In particular the
Constitutional Reform and Governance Act 2010 put parliamentary scrutiny of treaty ratification
by the Government on a statutory basis, giving legal effect to any resolution of the House of
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Commons or Lords that a treaty should not be ratified. According to the explanatory notes to
the Act:
should the House of Commons take the view that the Government should not
proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful
for the Government to ratify the treaty. The House of Lords will not be able to prevent
the Government from ratifying a treaty, but if they resolve against ratification the
Government will have to produce a further explanatory statement explaining its belief
that the agreement should be ratified.
Whilst treaty ratification remains a prerogative power, the House of Commons can prevent
the Government from exercising it. However, treaties are subject to the ‘negative resolution
procedure’, which means that no debate or vote is required prior to ratification. Indeed, no
debates have taken place in the House of Commons under the provisions in the 2010 Act
since it was passed.
4.4 The relationship between the executive and the judiciary

4.4.1 The importance of judicial independence
The importance of judicial independence from the executive is recognised in s 3 of the
Constitutional Reform Act 2005, which provides that the Government is under a duty to uphold
the independence of the judiciary and that individual ministers should not seek to influence
particular decisions through any special access to the judiciary. In 2017 the Lord Chief Justice
criticised the Lord Chancellor for failing in her duty under s 3 following the criticism of the
judiciary in the press after the High Court’s decision in R (Miller) v Secretary of State for
Exiting the European Union [2017] UKSC 5 (the ‘Brexit case’). Various sections of the press had
decried the judges, the Daily Mail claiming that they were the ‘enemies of the people’.
4.4.2 Judicial independence from the executive

In the UK, judicial independence from the executive is secured in a number of ways
(a) Appointment. Judicial appointments are now dealt with by the Judicial Appointments
Commission, which is politically impartial and free from executive control.
(b) Tenure. Security of tenure (ie job security) was given to judges of the senior courts
historically by the Act of Settlement 1701, although the modern basis of the law is
the Senior Courts Act 1981 and, in the case of the Justices of the Supreme Court, the
Constitutional Reform Act 2005. Senior judges hold office ‘during good behaviour’, and
may be dismissed by the Monarch only following a vote of both Houses of Parliament.
Judges cannot be dismissed merely because they give a judgment with which the
Government disagrees.
(c) Salary. Judicial salaries are determined by an independent body (the Senior Salaries
Review Board) and are paid from the Consolidated Fund. Under the Consolidated Fund
legislation, certain expenditure is authorised in permanent form and does not therefore
require annual approval. This means that payment of judicial salaries is insulated from
executive and parliamentary control (the salaries of judges appointed to the Supreme
Court are determined by the Lord Chancellor but will be charged on the Consolidated
Fund, making them effectively immune from political interference).
(d) Contempt of court laws. Common law contempt of court and statutory contempt under
the Contempt of Court Act 1981 ensure that there is no outside interference with the
administration of justice.
(e) Immunity from civil action. Judges, particularly in the higher courts, have wide-ranging
immunity from claims in tort in respect of their judicial actions. In other words, an
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unsuccessful litigant cannot sue a judge for making an error when carrying out his or her
duties.
(f) Constitutional conventions. By convention, members of the executive do not criticise
judicial decisions, and members of the judiciary do not engage in party political activity.
(g) The ‘sub-judice’ rule. Under this rule, Parliament (and therefore government ministers)
refrains from discussing matters currently being heard or waiting to be heard by the
courts.
4.4.3 The Constitutional Reform Act 2005

The Constitutional Reform Act was enacted in 2005. One of the reasons for this Act being
passed was the perception that there was too much of an overlap between the executive and
the judicial branches of state, particularly in relation to the office of the Lord Chancellor and
some of the quasi-judicial functions that were undertaken by government ministers.
4.4.3.1 Role of the Lord Chancellor

Prior to 2005, the Lord Chancellor was a member of both the executive and the judiciary. As a
government minister, the Lord Chancellor was a political appointee with a seat in the cabinet.
But they were also the head of the judiciary of England and Wales, with responsibility for
the appointment of senior members of the judiciary. The Lord Chancellor was also entitled
to sit as a Law Lord. It was considered that this dual role of the Lord Chancellor created the
impression that the executive had too much influence over the judiciary.
There were also concerns about the lack of transparency in the appointment of the judiciary.
Judicial appointments depended on a consultation process, or so-called ‘secret soundings’,
following which the Lord Chancellor approached prospective judges regarding their
appointment. Critics of the system pointed out that this led to a judiciary that was comprised
predominantly of white men who were privately and Oxbridge educated.
To address these concerns, the Constitutional Reform Act 2005 introduced the following
reforms:
(a) Role of Lord Chancellor. The Lord Chancellor’s role as head of the judiciary was
transferred to the Lord Chief Justice (now also known as the ‘President of the Courts of
England and Wales’). The Lord Chief Justice has overall responsibility for the training,
guidance and deployment of judges, and for representing the views of the judiciary to
Parliament, the Lord Chancellor and other ministers. The Lord Chief Justice has the right to
make written representations to Parliament on important matters relating to the judiciary
or the administration of justice. The Lord Chancellor remains a member of the cabinet
(although this role has now been combined with that of Secretary of State for Justice).
(b) Creation of the Judicial Appointments Commission. The Judicial Appointments Commission
(JAC) is an independent body that has been created to ensure that the appointment of
judges in England and Wales occurs solely on merit and is not influenced by political
considerations. Prior to the Act being passed, the appointment of the judiciary was solely
in the hands of the executive and was conducted on the basis of ‘secret soundings’.
Similar bodies exist in Scotland and Northern Ireland.
The system for appointing judges operates as follows:
(a) The Prime Minister (after receiving a recommendation from the Lord Chancellor) must
advise the Queen on filling any vacancy for the Lord Chief Justice, the Master of the Rolls,
Lord Justices of Appeal, the President of the Family Division and of the Queen’s Bench
Division, and High Court judges. The Lord Chancellor must consult the Lord Chief Justice
before making his or her recommendation, and will normally ask the JAC to convene
a ‘selection panel’ to select a candidate for such recommendation. Similar procedures
apply to appointments as circuit judges, recorders, district judges and magistrates.
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(b) Appointments to fill vacancies in the Supreme Court are made by the Queen on the
advice of the Prime Minister, who will in turn have received a recommendation from the
Lord Chancellor. A ‘selection commission’ consisting of the President of the Supreme
Court, a senior UK judge nominated by the President of the Supreme Court, and one
member from each of the three judicial appointments bodies will select candidates for
such recommendation.
(c) The system that has been introduced places primary responsibility for judicial
appointments on independent bodies, thus minimising any perception of improper
political involvement in the appointment of judges.
(d) The Act also requires that selection is based solely on merit. Nonetheless, where there are
two or more candidates of equal merit, a candidate may be selected for a post in order
to increase judicial diversity.
The Constitutional Reform Act 2005 also created the Supreme Court to replace the Judicial
Committee of the House of Lords. You will consider this below when you examine the
relationship between the legislature and the judiciary.
4.4.3.2 The judicial functions of the executive

One of the reasons behind the enactment of the Constitutional Reform Act 2005 was to
enhance the separation of powers between the executive and judiciary. Nonetheless, it
remains the case that members of the executive sometimes perform quasi-judicial functions.
The impact of Article 6 of the ECHR has been to reduce these functions in some areas (eg the
removal of the Home Secretary’s power to determine the length of tariff for prisoners given a
life sentence following the Anderson case). Members of the executive do, however, continue to
perform quasi-judicial functions in some areas. Compulsory purchase orders (CPOs) provide
an example of this. It is sometimes necessary for land to be made the subject of a CPO if it
is required for a particular purpose (eg the building of a new motorway). The decision as to
which land is to be purchased is a quasi-judicial decision, but will be taken by the relevant
government minister.
Nonetheless, although members of the executive are acting in a quasi-judicial capacity, any
decisions they make will be susceptible to judicial review (see below). If such decisions are
unlawful, irrational or breach any relevant procedural requirements, the courts can quash them.
4.4.3.3 How the judiciary holds the executive to account

One consequence of the UK having an unwritten constitution is that the judiciary does not have
the power to declare actions of the executive (or legislation enacted by Parliament) to be
unconstitutional. There is no ‘higher law’ against which all other actions or pieces of legislation
may be judged. However, through the process of judicial review, the judiciary is able to ensure
that the executive does not exceed or abuse the powers it has been granted, and that any
decisions the executive is required to make are made using the correct procedure.
The executive derives its power from two sources: statute and the royal prerogative. If
Parliament has granted statutory powers to the executive (for example, giving a particular
power to a government minister), through the mechanism of judicial review the courts can
ensure that those powers are exercised in accordance with the purpose of the statute and
are not exceeded or abused. Again through the mechanism of judicial review, the courts can
determine the extent of the royal prerogative and, in most cases, can review the exercise of
prerogative powers (see below) to ensure that they have been exercised in an appropriate
manner.
When the courts judicially review the actions of the executive, they are examining only
the legality of a decision or action, not its merits. The courts’ function is to ensure that the
executive has acted within its powers and has acted using the correct procedures. This is
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important in preserving the separation of powers between the executive and judiciary. Were
the judiciary to examine the merits of a decision, it would usurp the role of the executive.
4.4.3.4 Judicial control of the exercise of royal prerogative powers

You may remember from Chapter 1 that the royal prerogative is what remains of the absolute
powers that at one time were exercised by the Monarch, which have not been removed
by Parliament. By convention, such powers are today exercised by the Government on the
Monarch’s behalf.
Historically, the courts have been willing to adjudicate upon the extent of the royal
prerogative, but only fairly recently have they been prepared to consider how it is exercised.
Extent of the royal prerogative

The judiciary is responsible for deciding the extent of the royal prerogative (in other words,
whether a prerogative power exists or not). Through case law, the courts have established that
new prerogative powers cannot be created or the scope of existing powers extended. See, for
example, the Case of Proclamations (1611) 12 Co Rep 74. The King had the power to make
royal proclamations that had the force of statute. The powers were intended for use in times of
emergency and were subject to a number of qualifications, but the King used them, amongst
other things, to prohibit the construction of new houses in London. The Commons sought the
opinion of Chief Justice Coke and four fellow judges as to the legality of the proclamations. In
his judgment, Chief Justice Coke held that ‘the King hath no power but that which the law of
the land allows him’ (ie the King could not create new prerogative powers for himself).
In the more recent case of BBC v Johns [1965] Ch 3, the BBC claimed that the Crown had
a prerogative power to regulate broadcasting, which manifested itself in the BBC’s Royal
Charter. As such, it argued that it was entitled to rely upon the Crown’s exemption from income
tax (ie a widening of the Crown exemption). This argument was rejected, the court holding
that the Crown could not extend the scope of the existing prerogative.
The Supreme Court’s judgment in R (Miller) v The Prime Minister, Cherry v Advocate General
for Scotland [2019] UKSC 41 shows that the courts are willing to take a wide approach in
analysing the extent of prerogative powers. The case concerned the legality of the Prime
Minister’s advice to the Queen to prorogue Parliament for five weeks from 10 September 2019
to 14 October 2019, a period that would occupy a large portion of the time available ahead
of the UK’s withdrawal from the EU, which was then scheduled for 31 October 2019, an event
that would bring about a fundamental change to the UK constitution.
The Supreme Court classified the case as being about the extent of the prerogative power
rather than the manner of its exercise, stating that the power to prorogue was limited by
the constitutional principles with which it would otherwise conflict. The relevant constitutional
principles in this case were parliamentary sovereignty and parliamentary accountability.
The exercise of the power was unlawful as, without reasonable justification, it frustrated or
prevented Parliament’s ability to carry out its constitutional functions. The prorogation took
place in exceptional circumstances and prevented Parliament from exercising its constitutional
functions for five out of the eight weeks leading up to the date on which the UK was due to
leave the EU; Parliament would have no voice in the withdrawal process at a very critical
period. The Government failed to put forward any justification for taking action with such
extreme consequences. The advice to the Queen was therefore unlawful and hence the
prorogation was void.
Exercise of the royal prerogative

Although the courts can decide the extent of the royal prerogative, their power to review the
exercise of prerogative powers is more limited.
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In Blackburn v Attorney General [1971] 2 All ER 1380, Blackburn sought a declaration that
the Government, by signing the Treaty of Rome (now the Treaty on the Functioning of the
European Union), would unlawfully surrender part of Parliament’s sovereignty. The court held
that it had the power to determine whether a prerogative power existed but, once it had
determined the existence of the power, it had no right to review the exercise of the power. The
power to sign an international treaty was part of the royal prerogative and the exercise of that
power was immune from judicial review.
In CCSU v Minister for Civil Service [1984] UKHL 9, the Council of Civil Service Unions asked
the courts to review the decision of the Minister for the Civil Service to prohibit staff at GCHQ
from being members of a trade union without first consulting with the relevant trade union.
On the particular facts of the case, the House of Lords held that the minister’s decision had
been prompted by concerns about national security and the minister had been entitled to act
as she did; the Government was better placed to judge what was in the interests of national
security than the courts.
The case is more important, however, for what it said generally about the power of the courts
to review the exercise of royal prerogative powers by the executive. Retreating from the
decision in Blackburn, their Lordships held that the exercise of prerogative powers was not
automatically immune from the judicial review process. In his speech, Lord Roskill said that
any power exercised by the executive, whether the source of that power was from statute or
the royal prerogative, was capable of being judicially reviewed. The only exception to this
was if the power being exercised was not ‘justiciable’ (ie not an appropriate area for the
involvement of the courts).
Lord Roskill identified the following royal prerogative powers as being ‘non-justiciable’:
• Making international treaties
• Control of the armed forces
• Defence of the realm
• The dissolution of Parliament (following the Fixed-term Parliaments Act 2011, the power to
dissolve Parliament is no longer an aspect of the royal prerogative (see Chapter 1))
• The prerogative of mercy
• Granting public honours
The courts have subsequently reduced Lord Roskill’s list by judicially reviewing the exercise
of some of those prerogative powers that Lord Roskill considered to be non-justiciable. The
courts have, for example, reviewed the exercise of the prerogative of mercy by the Home
Secretary (R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER 442).
Nonetheless, there are still some royal prerogative powers that remain non-justiciable and
therefore beyond the scope of the courts.
These are areas of ‘high politics’ (such as the conduct of foreign relations), and the areas of
national security and defence of the realm. An example is the prerogative power to make
international treaties, the exercise of which the Supreme Court confirmed in R (Miller) v Secretary
of State for Exiting the European Union [2017] UKSC 5 is not subject to judicial review.
The courts are reluctant to become involved in these areas for two reasons. First, these are
areas that are often highly political in nature, and members of the judiciary are concerned
that reviewing the actions of the executive in these areas will lead to their becoming
politicised and potentially losing their independence. The accountability of the executive in
these areas is better secured through the electorate at a general election than through the
courts. Secondly, these are areas where the executive is deemed to have greater technical
knowledge and expertise than the judiciary.
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One consequence of the courts’ refusal to review the exercise of prerogative powers in certain
areas is that this leaves some of the executive’s powers effectively beyond the scrutiny of
both the legislature and the judiciary. Some of the areas that the courts deem to be non-
justiciable (particularly matters of defence and national security) are the same areas in which
Parliament’s ability to hold the executive to account is limited (see 4.3.4.3 above).
4.4.4 The relationship between the legislature and the judiciary

4.4.4.1 Keeping the legislature and judiciary separate
You have already seen that various statutory and other methods are in place to ensure that
the executive and judiciary are kept apart. Similarly, there are statutory and other methods for
ensuring some degree of separation between the legislature and judiciary. These include:
(a) House of Commons (Disqualification) Act 1975. Under s 1 of this Act, holders of judicial
office are disqualified from membership of the House of Commons.
(b) Impact of convention. There is a constitutional convention that Members of Parliament will
not make a criticism of a particular judge, and a further convention that members of the
judiciary will not become involved in political activities.
(c) The ‘sub-judice’ rule. Under this rule, Parliament will refrain from discussing details of
cases before the courts or waiting to come before the courts.
(d) Bill of Rights 1689, art 9. This article guaranteed freedom of speech in Parliament by
stating that Members of Parliament cannot be made subject to legal sanction by the
courts for comments made in Parliament. Comments made by members of either House
of Parliament are protected by ‘parliamentary privilege’. This means that Lords and MPs
enjoy immunity from any criminal or civil proceedings arising out of any statements made
by them within Parliament.
4.4.4.2 Areas of overlap between the legislature and judiciary

Prior to the enactment of the Constitutional Reform Act 2005, there were two significant areas
of overlap between the legislature and the judiciary.
First, the Appellate Committee of the House of Lords (the highest court in the country) was
part of Parliament. The ‘Law Lords’ were physically based in the Houses of Parliament and,
as peers, were entitled to take part in votes and debates in the chamber of the House
of Lords.
Secondly, the Lord Chancellor was the Speaker of the House of Lords, in addition to being
both the head of the judiciary and a Law Lord (and also a member of the Government).
The Constitutional Reform Act 2005 removed these areas of overlap. The Act created a new
Supreme Court for the United Kingdom, consisting of 12 Justices of the Supreme Court. The
Supreme Court replaced the ‘Law Lords’, whose official title was the Appellate Committee of
the House of Lords and who heard cases at the Palace of Westminster where Parliament is
located.
The Supreme Court opened in 2009 and has its own building away from Parliament. The
existing Law Lords at the time of the opening became the first Justices of the Supreme Court.
These Lords retained their peerages but did not sit in the House of Lords. However, new
Justices of the Supreme Court do not receive a peerage (although in December 2010 the
Queen signed a warrant that every Supreme Court Justice should be styled as Lord or Lady).
In addition to the creation of the Supreme Court, the Lord Chancellor is no longer Speaker
of the House of Lords. The Lord Speaker is now directly elected by members of the House
of Lords.
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4.4.4.3 The judiciary’s legislative function

Some constitutional commentators have suggested that, in interpreting statute and developing
the common law, the judiciary performs a legislative function.
Various theories exist concerning the ‘legislative function’ of the judiciary. An early theory that
developed (the ‘declaratory theory’) held that judges do not in any sense make the law. All
judges do in deciding cases that come before them is to declare what the law –as enacted
by Parliament –actually is. This theory is today a little unrealistic.
Some commentators have argued the opposite, claiming that judges play a significant role in
making the law (the ‘legislative theory’). Those who support this theory argue that a significant
amount of our law is judge-made (ie the common law) and that, in addition to developing the
common law, judges also play an important role when interpreting statute.
Although the legislative theory is more persuasive, there are limits on judicial law-making. The
theory of ‘judicial restraint’ holds that the judges should be reluctant to develop the common
law either in areas that Parliament intends to consider, or in areas where Parliament has
already decided not to legislate because it is satisfied with the current state of the law.
The common law doctrine of the supremacy of Parliament represents a self-imposed limitation
by the judiciary on its powers, with the judiciary accepting that statute takes precedence over
the common law. Thus if the courts develop the law in a direction that Parliament dislikes,
Parliament may legislate to overturn the common law.
An example of this occurred in 1965. In Burmah Oil Company v Lord Advocate [1965] AC 75,
the House of Lords awarded compensation to Burmah Oil for financial losses sustained during
World War II. Fearing that this would lead to a flood of similar claims, Parliament enacted
the War Damage Act 1965, which overruled the House of Lords’ decision and provided that
compensation was not payable.
4.4.4.4 Judicial powers in relation to primary legislation

The judiciary is unable to prevent Parliament from legislating in any given area. As you have
already seen, as a result of the UK having an unwritten constitution (and also the development
of the doctrine of the supremacy of Parliament), the judiciary does not have the power to
declare an Act of Parliament to be unconstitutional or to strike down such an Act. The UK has
no written constitution to provide a ‘higher’ authority against which all other legislation can be
judged.
However, as you saw in Chapter 2, during the UK’s membership of the EU and also until
the end of the transition period following the UK’s exit, the courts had the power to suspend
legislation that was incompatible with EU law. Following the end of the transition period, a
limited form of supremacy of EU law remains. The courts probably have the power to suspend
legislation enacted before the end of the transition period that conflicts with retained EU law.
Additionally, the European Union (Withdrawal Agreement) Act 2020 also appears to give the
Withdrawal Agreement supremacy over UK law. The most likely outcome of this is that if, in
future, Parliament passed a statute inconsistent with the Withdrawal Agreement, the courts
would disapply the statute in favour of the agreement unless Parliament explicitly instructed
them to give priority to the UK Act of Parliament. Please see Chapter 10 for further details of
retained EU law and the Withdrawal Agreement.
The courts also have the powers under s 4 of the HRA 1998 to declare that an Act of
Parliament is incompatible with the ECHR (see Chapter 2). Whilst this does not invalidate
the relevant statute, it does impose enormous pressure on the Government to amend the
offending piece of legislation.
In addition, in R (Jackson and others) v HM Attorney General [2005] UKHL 56, obiter
comments from the House of Lords suggested that some of their Lordships would be prepared
to strike down legislation that infringed the rule of law.
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4.4.4.5 The politicisation of the judiciary

As you have seen, a number of statutory and other provisions are in place to ensure that the
independence and political neutrality of the judiciary is maintained. In recent years, however,
concerns have been expressed over the danger that the judiciary is at risk of becoming
politicised.
In recent years, senior members of the judiciary have been appointed to chair public inquiries.
These inquiries have often involved issues that are politically sensitive. An example was Lord
Hutton’s inquiry in 2003 into the death of the government weapons inspector Dr David Kelly.
Lord Hutton’s subsequent exoneration of the Government from any blame led to allegations
that his report was a ‘whitewash’ and that he had been biased in favour of the Government.
Such allegations damage the independence and impartiality of the judiciary.
More recently the Leveson Inquiry, a public inquiry chaired by Leveson LJ into the culture,
practices and ethics of the British press, has caused considerable controversy. Its final report,
published in November 2012, contained recommendations for press regulation that many
newspapers vehemently opposed. The current Grenfell Tower Inquiry –the public inquiry into
the fire at Grenfell Tower on the night of 14 June 2017, which caused 72 deaths –has also
proved controversial. It is chaired by Sir Martin Moore-Bick, a retired Lord Justice of Appeal,
The implementation of the HRA 1998 and the incorporation of the ECHR into our legal system
has, on occasion, resulted in the courts having to decide cases with a significant ‘political’
element, particularly when the courts are attempting to balance civil liberties and the rights
of the individual against the Government’s concern about national security and the ongoing
terrorist threat. By making such judgments, judges have been drawn into controversial political
issues.
There have also been a number of occasions on which both government ministers and
backbench MPs have breached the constitutional convention that politicians should not
engage in criticism of individual members of the judiciary. Such criticisms have been
particularly common in relation to perceived leniency in the sentencing of criminal offenders,
and also in relation to a number of judgments in which the courts have declared that some
aspects of anti-terror legislation contravene the provisions of the HRA 1998.
More recently, there have been several judgments concerning the rights of individuals, which
have brought criticism from politicians. Examples include a ruling from the European Court of
Human Rights that the blanket ban on prisoners being entitled to vote was in breach of the
ECHR, and a Supreme Court ruling that convicted sex offenders should be permitted (in certain
circumstances) to challenge their names being entered for life on the ‘Sex Offenders Register’.
The judgments relating to the UK’s exit from the EU, Miller and Cherry/Miller (No 2) discussed
at 4.4.1 and 4.4.3.4 above respectively, also caused intense controversy. Following the High
Court judgment in Miller [2016] EWHC 2768 (Admin) the tabloid press attacked the judges in
the case with the Daily Mail denouncing them as ‘enemies of the people’. Lord Neuberger,
then President of the Supreme Court, criticised as inadequate the responses of politicians,
including the Lord Chancellor, to these virulent attacks. He said that ‘some of what was said
was undermining the rule of law’.
Summary
• In this chapter, you have looked at what is meant by the idea of the rule of law by
examining first Dicey’s views on this subject and then Lord Bingham’s more modern
version.
• You have also considered the meaning and historical development of the theory of the
separation of powers.
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• You have examined the relationship between the different branches of state in the UK by
considering the degree of overlap and separation between these branches. You have
done this in the context of the following relationships:
∘ Executive/legislature
∘ Executive/judiciary
∘ Legislature/judiciary
• You have observed that in the UK separation of powers is achieved by a combination of
constitutional conventions and statute, in particular the Constitutional Reform Act 2005.
• You have begun to assess the extent to which the UK constitution demonstrates an
effective separation of powers. There is considerable overlap between the executive and
legislature, but a substantial degree of separation between the judiciary and the other
branches of government.
• You should also check your understanding by considering the summary diagram in
Figure 4.1.
Figure 4.1 Separation of powers in the UK
Definition:
• No overlap in functions/personnel
between different branches of state
Executive/Legislature:
• Checks and balances
• HoC (Disqualification) Act, ss 1–2
• Does the Government ‘control’
Parliament:
– Most ministers MPs Importance:
– Most legislation from Government • Avoid arbitrary or oppressive
– Government has in-built majority in exercise of power
Commons
– Weak role of Lords
– ‘elective dictatorship’
• Effectiveness of parliamentary scrutiny
of the Government?
• Ministerial responsibility Position in UK:
• Unwritten constitution
• No formal separation of
powers
Separation of powers
Judiciary/Legislature:
Executive/Judiciary:
• HoC (Disqualification) Act, s 1
• Judicial independence: salary/tenure/ • Convention – judges ‘avoid’ politics/MPs
contempt of court/civil immunity do not criticise individual judges
• Judicial Appointments Commission • Sub-judice rule
• Reduced role of Lord Chancellor • Bill of Rights 1689, art 9
• Judicial review of executive actions • Constitutional Reform Act 2005 –
• Royal prerogative
Supreme Court
• Quasi-judicial role of the executive
• Do judges legislate?
• Politicisation of judiciary?
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Sample questions
Question 1
The minister in charge of an emergency bill being presented to the UK Parliament to deal
with a major public health emergency is concerned about the approach the courts might
take to certain provisions in it, in particular provisions allowing for the indefinite detention
without trial of people who disobey provisions prohibiting anyone from being more than
five miles from their home. The minister has asked for advice regarding the possible
response of the courts should the courts find that the bill (when enacted) violates the rule
of law.
Which of the following best describes the possible response of the courts?
A The Supreme Court, adopting the approach outlined by eminent judges in case law, is
likely to strike down the legislation.
B Pursuant to the doctrine of parliamentary sovereignty, the courts will nonetheless apply
the legislation.
C The High Court or above is likely to issue a declaration of incompatibility pursuant to s
4 Human Rights Act 1998 disapplying the legislation.
D The High Court or above is likely to issue a declaration of incompatibility pursuant to s
4 Human Rights Act 1998 should the legislation violate the ECHR. The legislation will,
however, remain in force.
E The Supreme Court is likely to issue a declaration disapplying the legislation as, by
virtue of violating the rule of law, the legislation will breach retained EU law.
Answer
Option D is correct. It may be possible for the Government to introduce detention without
trial to combat a public health emergency, but indefinite detention is likely to violate Article
5 of the ECHR –the right to liberty and security –as well as being contrary to the rule of
law. Declarations of incompatibility do not, however, invalidate the legislation although they
put pressure on the Government to amend or repeal the offending provisions. Accordingly,
option C is wrong as the courts have no power under the Human Rights Act to disapply
legislation.
Option D is a better answer than option A as option A is based on obiter dicta and the
Supreme Court has never actually struck down legislation in this way. UK courts have
disapplied statutes for infringing EU law during the UK’s membership of the EU, but not for
infringing the rule of law. Option D is also a better answer than option B. Whilst the courts
are likely to apply the legislation due to parliamentary sovereignty, it is highly probable
that they would issue a declaration of incompatibility.
Option E is wrong as retained EU law only has limited supremacy over Acts of Parliament
enacted before the end of the transition period. Moreover, there is unlikely to be any
retained EU law with which the legislation in this question would conflict.
Question 2
The Government is considering whether to launch air strikes on a suspected terrorist base
in an overseas country. It believes the terrorists concerned pose a direct and imminent
threat to the UK. The Government has asked the Attorney General for advice as to whether
parliamentary approval is required for the air strikes.
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Which of the following best describes whether parliamentary approval is required?

A Although it is probable that a convention has recently emerged that the Government
should obtain parliamentary approval before taking military action, where an
emergency exists the Government need not obtain prior approval.
B The decision whether or not to take military action involves the exercise of a
prerogative power and parliamentary approval is unnecessary as the Government is
best placed to judge the defence needs of the country.
C Although it is a statutory requirement that the Government should obtain parliamentary
approval before taking military action, where an emergency exists the statute
dispenses with the need for prior approval.
D It is probable that a convention has recently emerged that the Government should
obtain parliamentary approval before taking military action, so the Government must
obtain prior approval.
E It is a statutory requirement that the Government should obtain parliamentary approval
before taking military action, so the Government must obtain prior approval.
Answer
Option A is correct. The Cabinet Manual states that the Government has acknowledged
that a convention has developed that the House of Commons should have an opportunity
to debate the matter before military action is taken, except where an emergency exists and
such action would not be appropriate. Option A is a better answer than option B because
the reason parliamentary approval is not needed in the instant case is the existence of an
emergency. Option D is wrong because it ignores the possibility of dispensing with the need
for parliamentary approval where it would not be appropriate, as in the instant case.
Options C and E are wrong because taking military action is a prerogative power, not a
statutory one.
Question 3
The UK and South Africa are proposing to enter a treaty relating to the safeguarding of
intellectual property rights and data protection. The UK Government proposes to ratify it
using the royal prerogative. Some British businesses, relying on expert economic analysis,
believe the treaty will be highly damaging to their interests and will give an unfair
advantage to South African businesses. They would therefore like to challenge the treaty in
the UK courts.
Can the businesses bring a successful action challenging the treaty?
A Yes, because the courts are willing to rule on the extent of prerogative powers and it is
doubtful whether the UK Government can enter into treaties using prerogative powers.
B Yes, because the courts are willing to rule on how the Government exercises its
prerogative powers and on the facts the treaty seems unreasonable.
C No, because traditionally UK courts have refused to rule upon the extent of prerogative
powers and how they are exercised.
D No, because traditionally UK courts have refused to rule upon how prerogative powers
are exercised.
E No, because UK courts regard certain prerogative powers as non-justiciable and so
refuse to review how they are exercised.
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Answer
Option E is correct. Historically UK courts have been reluctant to review the exercise of
prerogative powers, but their approach shifted in the CCSU case and they are now willing
to review the exercise of some prerogative powers. Whilst option D reflects the traditional
approach of the UK courts, option E is a better answer as the courts no longer follow that
approach. However, the courts regard treaty-making as a political issue for the Government
to decide upon (Blackburn v Attorney General) and so is not subject to review by the
courts. Option B is therefore wrong because the courts will not interfere even if the treaty is
unreasonable.
Option C is wrong because the courts have for centuries been willing to rule on the extent of
prerogative powers. Option A is wrong as treaty-making is a prerogative power.
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5 Public Order Law
5.1 Approach of English law to public order 86

5.2 Processions 87
5.3 Meetings 90
5.4 The common law: breach of the peace 93
SQE1 syllabus
This chapter will enable you to achieve the SQE1 assessment specification in relation
to functioning legal knowledge concerned with police powers to control protests,
including:
• processions;
• assemblies; and
• breach of the peace.
purposes only.
Learning outcomes
• understand and apply the powers of the police to control processions under the
Public Order Act 1986 (POA 1986);
• understand and apply the powers of the police to control assemblies under
POA 1986;
• identify when a breach of the peace occurs; and
• analyse the powers of the police to deal with a breach of the peace in the
context pf processions and assemblies.
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5.1 Approach of English law to public order

Historically, protection of individual rights and freedoms under the UK constitution was based
on the principle of residual or ‘negative’ freedom developed at common law, ie that citizens
are free to do as they wish unless the law clearly states that such conduct is prohibited.
Nonetheless, English judges have traditionally acknowledged that a ‘right’ to protest exists. For
example, in Hubbard v Pitt [1976] 1 QB 142, Lord Denning affirmed:
the right to demonstrate and the right to protest on matters of public concern.
These are rights which it is in the public interest that individuals should possess;
and, indeed, that they should exercise without impediment so long as no wrongful
act is done. It is often the only means by which grievances can be brought to the
knowledge of those in authority, at any rate with such impact as to gain remedy.
Although the concept of residual freedoms remains an important principle, the HRA 1998 has
had a considerable impact in this area as there is now positive protection of individual rights
and freedoms in the UK, not merely residual freedom. The Human Rights Act incorporated
the key rights and freedoms in the ECHR into domestic law as ‘Convention rights’, and
consequently there has been a significant shift under the UK constitution from residual
freedom to the positive protection of individual rights and freedoms.
The key provisions of the ECHR in the context of public order are Article 10 –freedom of
expression –and especially Art 11 –freedom of assembly and association. Article 11(1)
gives a right of peaceful assembly and the separate right of freedom of association. These
rights are regarded worldwide as fundamental rights in a democratic society and the courts
construe them widely. However, they are subject to qualifications. The state can restrict
freedom of assembly if the restrictions are:
• prescribed by law; and
• necessary in a democratic society;
∘ in the interests of national security or public safety;
∘ for the prevention of disorder or crime;
∘ for the protection of health or morals; or
∘ for the protection of the rights and freedoms of others.
This chapter focuses very much on the POA 1986. Prior to its enactment in 1986, there were
numerous statutory and common law offences concerning public order. Following a period of
public disorder that included inner-city riots in 1981 and the miners’ strike of 1984–85, which
involved violent clashes between miners and the police, the POA 1986 was introduced in
reaction to the perceived need to give the police greater powers and to clarify the law.
The basic approach of English law is that processions and meetings are prima facie lawful
unless they amount to crimes or torts. As processions are regarded as a reasonable use of
a public highway, they are lawful unless disorder or violence breaks out, in which case the
possibility arises that the participants may be charged with a public order or other criminal
offence. If property is damaged, the participants could in theory face a tort action as well as
criminal proceedings.
Protest marches through the streets of a town or city will normally be legal as long as they
keep moving. However, if the marchers stop and hold an assembly or meeting, the position
alters. For example, meetings on a public highway may amount to wilful obstruction of a
highway contrary to s 137 of the Highways Act 1980, which makes it an offence for a person,
without lawful authority or excuse, in any way to wilfully obstruct the free passage along a
highway. However, in examining ‘lawful excuse’, courts need to decide if an activity causing
an obstruction is itself lawful and whether it is reasonable. In the case of protests, they must
take into consideration Articles 10 and 11 of the ECHR and protesters have sometimes been
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acquitted where the courts considered that the protesters acted reasonably. See also the
discussion at 5.3.4 below.
As processions and meetings are prima facie lawful, the police usually need specific powers
if they are to control them. The POA 1986 gives them significant powers to deal with potential
disruption to society and threats of violence. This chapter concentrates on preventative
measures –the power to impose conditions on or ban public processions and public meetings.
Additionally, the POA 1986 created a number of public order offences to replace the mainly
common law offences that had existed. These offences range from riot (s 1) with a maximum
sentence of 12 years’ imprisonment to threatening, abusive or insulting behaviour (s 5) with a
fine of £1,000 as a maximum sentence. These offences are outside the scope of this manual.
As well as having statutory powers, the police also retain common law powers to prevent
breaches of the peace. These sometimes supplement the statutory powers.
5.2 Processions
5.2.1 Advance notice
Section 11(1) of the POA 1986 requires any person organising a ‘public procession’ for any
of the purposes in s 11(1)(a), (b) and (c) to give the police at least six clear days’ notice
of the date, time and route of the proposed procession. The purposes set out in these
sub-sections are:
(a) to demonstrate support for or opposition to the views or actions of any person or body of
persons;
(b) to publicise a cause or campaign; or
(c) to mark or commemorate an event.
Football supporters on their way to watching a match or schoolchildren being led from their
school to a local library are therefore outside the notice requirements.
Section 16 defines ‘public procession’ as ‘a procession in a public place’ and defines ‘public
place’ as any highway or any other place that the public may lawfully access on payment
or otherwise. Public place therefore includes not only places such as public squares, parks
and beaches but also privately owned places, such as football grounds and theatres,
that the public can access on purchasing a ticket. Accordingly, the definition of public
procession would, for example, cover a march into a theatre to protest about a play being
performed there.
Section 11(4) requires the organisers to deliver the notice to a police station in the police area
where the procession will start.
The purpose of the notice provisions is to enable the police to plan and give directions to
avoid public disorder or other disruption.
5.2.2 Qualifications and exemptions

Not all processions are caught by the requirement to give notice. It does not apply to funeral
processions nor to customary or commonly held processions in a given police area (s 11(2)),
as in the latter case the police should be aware that it is a regular occurrence. Thus it would
not be necessary to give notice of an annual Remembrance Day or Diwali parade.
Kay v Commissioner of Police of the Metropolis [2008] UKHL 69 is a significant case on this
topic. It concerned mass cycle rides (‘Critical Mass’) that had taken place in central London
on the last Friday of each month since 1994 for 12 years without any central organisation and
any route being pre-planned. The police required the cyclists to give notice under s 11, and
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one of the cyclists challenged this requirement by way of judicial review. The House of Lords
held that Critical Mass was ‘commonly or customarily’ held even though it did not follow a
predetermined route but varied on each occasion. It was therefore exempt from the notice
requirement.
There is an also exception for occasions when it is not reasonably practicable to give notice.
This would cover an impromptu reaction to some news such as the sudden announcement of a
factory closure or unexpected military action by a government.
5.2.3 Offences
There are two offences under s 11. The organisers are guilty of the first offence if they do not
give the required notice (s 11(7)(a)). They are guilty of the second offence if the processions
differ from what the notice specified (s 11(7)(b)). It is a defence to the first offence if the
organiser did not know, and did not have any reason to suspect, that s 11 had not been
complied with (s 11(8)). It is a defence to the second offence if the departure from the details
in the notice arose from circumstances beyond the organiser’s control or from something done
with the agreement of the police or by their direction (s 11(9)). In both cases the burden of
proof is on the defendant on the balance of probabilities to prove that the defence exists.
On conviction the organisers are liable to a fine not exceeding level 3 on the standard scale,
currently £1,000.
Failure to provide notice results in the organisers committing an offence, but does not render
the protest/procession unlawful. Only the organisers commit an offence. It does not make the
participation in such a procession a criminal offence. The procession itself is lawful.
5.2.4 Imposing conditions on public processions

Under s 12 POA 1986, the police have powers to impose conditions upon public processions,
provided that a senior police officer reasonably believes that:
• the march will result in serious public disorder, serious damage to property, or serious
disruption to the life of the community (s 12(1)(a)); or
• the purpose of the organisers is to intimidate others with a view to compelling them not to
do something that they have a right to do, or to do something that they have a right not to
do (s 12(1)(b)).
Intimidation in s 12(1)(b) means more than being a nuisance or causing discomfort, as the
reference in the sub-section to ‘compelling’ suggests. In Police v Reid [1987] Crim LR 702,
anti-apartheid demonstrators outside South Africa House, where a reception was being held,
shouted at guests as they arrived. The demonstrators raised their arms and waved their
fingers at the guests as they arrived, chanting ‘Apartheid murderers, get out of Britain’ and
‘You are a dying breed’. The Chief Inspector in charge decided that this was intimidatory
and sought to impose a condition on the demonstrators requiring them to move away, relying
on section 14(1) POA 1986 (see 5.3 below). (Although the case concerned s 14, the court’s
analysis of intimidation is equally applicable to s12.) The defendant ignored the condition
and was arrested and charged with failing to comply with it. The court held that the condition
was ultra vires as the Chief Inspector had applied the wrong test. He defined intimidation as
‘putting people in fear or discomfort’ and had thereby incorrectly equated intimidation with
discomfort. The demonstrators would have needed an intention to compel the guests not to go
into the reception for their activities to amount to intimidation.
The conditions that the senior police officer may impose are those that appear to be necessary
to prevent such disorder, damage, disruption or intimidation. This includes conditions prescribing
the route or prohibiting the march from entering a particular public place.
Under s 12(2) the identity of the ‘senior police officer’ with the power to impose conditions
depends on the circumstances. For conditions imposed during the procession, it is the most
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senior police officer present at the scene (s 12(2)(a)) and they may be given verbally. For
conditions imposed in advance it is the chief officer of police –the Chief Constable of the
relevant police force or the Commissioner of Police of the Metropolis or for the City of London
(s 12(2)(b)). When given before the event, they must be provided in writing. Additionally, the
chief officer of police must provide sufficient reasons so that, firstly, the demonstrators can
understand why the conditions have been imposed and, secondly, a court can assess whether
the belief that the procession may result in the consequences listed above (serious disruption
etc) is reasonable (R (Brehony) v Chief Constable of Greater Manchester Police [2005] EWHC
640 (Admin) –a case on s 14 below applied by analogy to s 12).
When imposing conditions, the police also need to consider the impact of Article 11 ECHR.
Any conditions they impose must be proportionate.
5.2.5 Offences under s 12

Section 12 of the POA 1986 creates the offences and imposes the possible sanctions set
out below:
• s 12(4): Organising a public procession and knowingly failing to comply with a condition
imposed under s 12(1).
Possible sanctions: Imprisonment not exceeding three months or a fine not exceeding
level 4 on the standard scale (currently £2,500) or both (s 12(8)).
• s 12(5): Taking part in a public procession and knowingly failing to comply with a
condition imposed under s 12(1).
Possible sanctions: Fine not exceeding level 3 on the standard scale (currently £1,000)
(s 12(9)).
• s 12(6): Inciting a participant in a public procession to commit an offence under s 12(5).
Possible sanctions: Imprisonment for a term not exceeding three months or a fine not
exceeding level 4 on the standard scale (s 12(10)).
Organisers and participants have a defence if they can show that their failure to comply with
the conditions was due to circumstances beyond their control, for example that an organiser
had become too ill to change the route or that a participant was unwillingly swept along by
the crowd. The burden of proof is on the defendant to prove the defence on the balance of
probabilities. It is also a defence to prove the conditions are invalid, as in Police v Reid.
5.2.6 The power to prohibit processions

Section 13(1) of the POA 1986 provides that a chief officer of police can apply for a
prohibition order in respect of public processions if they reasonably believe, because of
particular circumstances existing in any locality, that the powers in s 12 are insufficient to
prevent a risk of serious public disorder (s 13(1)).
The chief officer of police applies to the local authority, which then makes an order with the
Home Secretary’s consent. Local authorities have no power of their own to seek a ban; the
initiative must come from the police.
In London the procedure is different, as s 13(1) does not apply to London. The Commissioner
of Police for the City of London or the Commissioner of Police of the Metropolis makes the
order for the same reasons as apply outside London, with the Home Secretary’s consent
(s 13(4)).
The order can be for any period not exceeding three months. The order may ban all
processions or processions of a particular class, such as political marches. However, there is
no power to ban a specific individual procession. The order must be in writing (s 13(5)).
It is possible to challenge a ban by way of judicial review, as occurred in Kent v Metropolitan
Police Commissioner (1981) (The Times, 15 May). The case concerned equivalent provisions
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in the Public Order Act 1936 but its reasoning is likely to apply to the POA 1986. Monsignor
Bruce Kent, as General Secretary of the Campaign for Nuclear Disarmament (CND),
challenged an order banning all processions in the metropolitan district (covering an area
of 786 square miles) for 28 days, other than traditional May Day celebrations and those
of a religious character. He argued that the order was ultra vires because it applied to all
processions over a large area and was far too wide in its scope. The Metropolitan Police
Commissioner adduced evidence of serious public disorder largely due to National Front and
anti-National Front demonstrations. He stated that all processions, however peaceful in intent,
were potential targets for extremists.
The Court of Appeal upheld the banning order. The claimant had failed to show that the
Metropolitan Police Commissioner had no reasonable grounds for making the banning
order, although one Lord Justice did think the reasons were ‘meagre’. This shows that the
courts are reluctant to quash what are essentially operational decisions. The decision in this
case had been taken in a context where there had been significant outbreaks of violence in
various parts of London. The Court of Appeal suggested that CND should have applied for a
relaxation of the order, which is possible under s 13(5).
The power to prohibit processions has not been used frequently. The overwhelming majority
of bans have been imposed in relation to proposed marches by the National Front and more
recently by the English Defence League.

Section 13 of the POA 1986 creates the offences and imposes possible sanctions set out
below. They are very similar to those that s 12 creates:
• s 13(7): Organising a public procession knowing that it is prohibited under s 13.
level 4 on the standard scale or both (s 13(11)).
• s 13(8): Taking part in a public procession knowing that it is prohibited under s 13.
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 13(12)).
• s 13(9): Inciting a participant to take part in a public procession that is prohibited
under s 13.
exceeding level 4 on the standard scale s 13(13).
5.3 Meetings
Before the POA 1986 there were no statutory powers to control the holding of public meetings
as opposed to processions. Including the power to control meetings in the POA 1986 was a
response to concerns that static protests could cause public order problems. The Government
was particularly anxious about the impact of mass picketing in industrial disputes such as the
miners’ strike of 1984/5, although picketing is also covered in trade union legislation.
5.3.1 Meetings: permission sometimes required

Whilst the general rule is that there is no requirement to obtain permission to hold a meeting,
it would be wrong to assume that it is possible to hold a meeting in any public space such
as a public square or park. Local or private Acts of Parliament or byelaws may lay down a
requirement for permission. For example, the Trafalgar Square Byelaws 2012 require anyone
wanting to use Trafalgar Square for a meeting to obtain permission from the Greater London
Authority. Similarly, the Royal Parks and Other Open Spaces Regulations 1997 make it
necessary to seek permission to use a Royal Park such as Hyde Park.
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A meeting on private land obviously requires the permission of the owner, otherwise the owner
can claim damages for trespass or apply to the courts for an injunction. The police could help
to eject any trespassers at the request of the owner, for example if there is a breach of the
peace, but they have no independent powers unless there is a breach of the peace or crimes
such as criminal damage are being committed.
The general rule remains, though, that the police have no power to ban assemblies, as the
power to impose conditions was regarded as being sufficient. The Criminal Justice and Public
Order Act 1994 has, however, granted a power to ban ‘trespassory assemblies’ on limited
grounds (see 5.3.4 below).
5.3.2 Imposing conditions on public assemblies

Under s 14 POA 1986, a senior police officer can impose conditions on any public assembly
if they reasonably believe that it may result in serious public disorder, serious damage
to property or serious disruption to the life of the community, or that the purpose of the
organisers is the intimidation of others. These are the same criteria that are employed in s 12
for imposing conditions on processions. However, there is no requirement for the organisers of
a public assembly to give advance notice.
A public assembly is an assembly comprising two or more persons in a public place that is
wholly or partly open to the air (POA 1986, s 16, as amended by the Anti-social Behaviour
Act 2003, which reduced the number required from 20 to two). This is a very wide definition.
For example, it would include a crowd listening to a brass band playing in a park bandstand
or gathered together in the garden of a pub, as well as those attending a political meeting.
Unlike s 12, the purpose of the assembly is irrelevant.
The conditions that the senior police officer may impose are those which appear to the
senior officer as necessary to prevent such disorder, damage, disruption or intimidation. The
definition of senior police officer is the same as for s 12.
There is, however, a crucial difference between s 12 and s 14 regarding the conditions that
the police may impose. Under s 12, the police may impose any condition that appears
necessary (subject to their reasonableness and proportionality). In contrast, the types of
conditions that s 14 authorises are limited to those of place, maximum duration and maximum
number of persons. As with s 12, conditions that the police impose in advance must be in
writing and give adequate reasons, whilst conditions imposed during an assembly may be
given verbally.
Whilst there is no power under s 14 to ban public assemblies, the police may be able in
effect to order participants to disperse. The chief officer of police on the scene may impose
conditions limiting the duration of the meeting, so if necessary the police could impose a
condition limiting the maximum duration to five minutes from giving the notice of the condition.
However, any condition imposing a maximum duration must be proportionate.

Section 14 of the POA 1986 creates the offences and imposes possible sanctions set out
below. They are also similar to those that s 12 and s 13 create:
• s 14(4): Organising a public assembly and knowingly failing to comply with a condition
level 4 on the standard scale or both (s 14(8)).
• s 14(5): Taking part in a public assembly and knowingly failing to comply with a condition
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 12(9)).
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• s 14(6): Inciting a participant in a public procession to commit an offence under s 14(5).

exceeding level 4 on the standard scale (s 12(10)).
Organisers and participants have a defence if they can show that their failure to comply with
the conditions was due to circumstances beyond their control. The burden of proof is on the
defendant to establish the defence.
It is also a defence to prove the conditions are invalid, as in Police v Reid. Although an
assembly can consist of as few as two people, it must be doubtful whether an assembly
of two people could cause serious public disorder or serious disruption to the life of the
community. Where the police impose conditions on a very small gathering, they might find it
problematic to argue that those conditions were proportionate.
R (Brehony) v Chief Constable of Greater Manchester (above) provides an interesting
example of the application of the principle of proportionality. Saturday demonstrations
had been taking place regularly for four years outside Marks & Spencer in the centre of
Manchester, protesting against the company’s support for the Israeli Government and also
calling for a boycott of Marks & Spencer’s stores. A counter-demonstration in support of
Israel had also been taking place outside the same store for some months. In November
2004, the Chief Constable issued a notice under s 14 requiring the demonstration to move to
the nearby Peace Gardens over the Christmas shopping period (29 November to 3 January)
due to the serious disruption that would otherwise occur when the number of visitors to the
city centre would treble.
The judge refused the organiser’s judicial review application, because the conditions were
not unreasonable and were proportionate. The test for proportionality was whether the Chief
Constable’s legitimate objective of preventing serious disruption could have been achieved by
means that interfered less with the claimant’s rights. Given the limited and temporary nature
of the restrictions, they did not.
5.3.4 Trespassory assemblies

It was not until that the enactment of the Criminal Justice and Public Order Act 1994 (CJPOA
1994) that the police were given the power to apply for meetings to be banned. The
CJPOA 1994 added s 14A to the POA 1986, which introduced the power to ban trespassory
assemblies, defined in s 14A(1) as ‘an assembly … to be held … at a place or on land to
which the public has no right of access or only a limited right of access’.
According to s 14A(9), ‘assembly means an assembly of 20 or more persons’ and land means
‘land in the open air’. These definitions are narrower than those applying to the s 14 power to
impose conditions in the following ways:
• Under s 14, an assembly need only comprise two people, whilst under s 14A at least 20
people are required.
• The section 14A power only applies to land entirely in the open air, whilst s 14 land
applies to land that is just partly in the open air.
• The section 14A power applies only to land to which the public has no or only a limited
right of access. Accordingly, the s 14A power (unlike the s 14 power) does not cover
assemblies on common land to which the public has an unlimited right of access.
The criteria for banning a trespassory assembly are also narrower than those for imposing
conditions. The chief officer of police must reasonably believe that it is intended to hold a
trespassory assembly:
• without the permission of the occupier or outside the terms of any permission or right of
access; and
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• which may result in serious disruption to the life of the community or significant damage
to the land, building or monument which is of historical, archaeological or scientific
importance.
The chief officer may then apply to the local authority for an order prohibiting for a specified
period the holding of all trespassory assemblies in the district or part of it. There are,
however, strict time and geographical limits on the scope of the order. It must not last for
more than four days and must not apply to an area greater than that represented by a circle
of five miles’ radius from a specified centre. The local authority must also obtain the Home
Secretary’s consent for the making of such an order.
In London the Police Commissioner for the Metropolis or the Commissioner of the City of
London Police may make such an order with the consent of the Secretary of State.
The POA 1986 as amended by the CJPOA 1994 creates the following offences:
• s 14B(1): Organising an assembly knowing it to be prohibited.
level 4 on the standard scale or both s 14B(5).
• s 14B(2): Taking part in assembly if the participant knows it is prohibited.
Possible sanctions: Fine not exceeding level 3 on the standard scale (s 14B(6)).
• s 14B(3): Incitement to organise or participate in an assembly if the person knows it is
prohibited.
exceeding level 4 on the standard scale s 14B(7).
It is important to note, though, a notice prohibiting trespassory assemblies does not constitute
an absolute ban on all assemblies on that land. Such a notice only prohibits assemblies to
the extent those taking part in it are trespassing on the land. This point has been particularly
pertinent in relation to public roads, ie highways, as an assembly on a highway is only
trespassory if the participants go outside their right of access. DPP v Jones [1999] UKHL 5
is a leading case on this. Salisbury District Council had made an order prohibiting certain
trespassory assemblies within a radius of four miles from Stonehenge. Two protesters were
arrested while participating in a peaceful, non-obstructive demonstration of 21 people on a
highway near Stonehenge. The High Court held that the magistrates had correctly convicted
them under s 14B(2), holding that the public’s right to use the highway was restricted to
passing and repassing and any activities ancillary or incidental to that right, and that a public
assembly was not incidental to the right of passage.
The Lords ruled by a 3-2 majority that the defendants had not committed an offence. A public
highway was a public place that the public might enjoy for any reasonable purpose, provided
the activity in question did not involve a public or private nuisance and did not unreasonably
obstruct the highway. Accordingly, the power to ban trespassory assemblies is not as far-
reaching as it might seem at first sight.
Additionally, s 14C gives a constable in uniform who reasonably believes that a person is on
their way to a trespassory assembly the power to stop that person and direct them not to
proceed in the direction of the assembly. It is an offence to ignore such a direction punishable
by a level 3 fine (currently £1,000).
5.4 The common law: breach of the peace

The police also have common law powers to prevent a breach of the peace. The police can
use these powers in many contexts, and their use to control assemblies remains relevant
despite the extensive statutory powers granted by the POA 1986.
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The authoritative definition of breach of the peace is that set out in by the Court of Appeal in
R v Howell [1982] QB 416: ‘there is a breach of the peace whenever harm is actually done or
likely to be done to a person or in his presence to his property or a person is in fear of being
so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.’
A breach of the peace is not a criminal offence, but triggers various police powers to take
action to prevent the breach. At common law the police have a power of arrest not only if
a breach of the peace has occurred but also to prevent one from occurring. They also have
powers to take steps falling short of arrest such as requiring people breaching the peace or
threatening do so to move way. Likewise, the police can attend and disperse a gathering if
they reasonably fear a breach of the peace. Section 17(6) of the Police and Criminal Evidence
Act 1984 preserves the common law powers of entry without a warrant to prevent a breach of
the peace.
The case of Duncan v Jones [1936] 1 KB 218 shows how the police can use their common
law powers to prevent a public meeting. The appellant was about to address a meeting of
about 30 people taking place in a road to protest against the Incitement to Disaffection Bill.
There was evidence that previous meetings the appellant had addressed at that location
had led to disturbances. A policeman ordered the appellant not to hold the meeting, but she
persisted in trying to hold it and obstructed the police officer when he tried to stop her doing
so. No breach of the peace actually occurred but the Divisional Court upheld the appellant’s
conviction of wilfully obstructing the officer in the execution of his duty. The fact that the officer
reasonably apprehended a breach of the peace justified the finding that he was acting in
the execution of his duty. The police had the power to prevent a demonstration on a public
highway where there was any fear of a breach of the peace.
The police’s use of common law powers has sometimes proved controversial. The police do
not need to wait until actual violence occurs before they exercise such powers and can take
preventative action to prevent gatherings that could result in a breach of the peace. However,
the circumstances in which they can take preventative action against demonstrators have
proved contentious, as demonstrated by the case of Moss v McLachlin [1985] IRLR 76.
During the miners’ strike of 1984–85, the police stopped a convoy of up to 80 striking miners
at a junction on the M1 about 1.5 and 5 miles from four collieries at which miners were still
working. The striking miners were intending to picket those collieries. The police feared a
breach of the peace as violent confrontations were likely to take place if the striking miners
continued to their destination. Accordingly, to prevent a breach of the police, the police
instructed the miners not to proceed towards the collieries. Some of the miners tried to push
past the police cordon, and were arrested and subsequently convicted by magistrates of
obstructing a police officer in the execution of his duty.
On appeal the Divisional Court upheld the convictions. There had been numerous violent
confrontations during the course of the strike and so the police had acted lawfully. The police
had a duty to prevent a reasonably apprehended breach of the peace. The possibility of a
breach of the peace in close proximity both in place and time was real and immediate and
not remote.
However, under the impact of the HRA 1998 and Articles 10 and 11 of the ECHR, the approach
of the courts has shifted. In R (Laporte) v Chief Constable of Gloucester [2006] UKHL 55 a
group of about 120 anti-Iraq War campaigners were travelling to a demonstration outside RAF
Fairford when their coaches were stopped by the police who then escorted them the 90 miles
back to London without permitting breaks for relief or refreshment. The claimant argued her
Article 10 right to freedom of expression and Article 11 right to freedom of peaceful assembly
had been violated. The Court of Appeal held that it was lawful for the police to prevent
demonstrators joining the demonstration if they reasonably apprehended a breach of the
peace, stating that the requirement that the breach should be ‘imminent’ in a strict sense did
not apply to actions short of arrest. On further appeal, the House of Lords held that:
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1. The police were purporting to use powers to prevent a reasonably apprehended breach
of the peace. However, these powers are only available when a breach is ‘imminent’. On
the facts, the police did not believe that a breach of the peace was imminent.
2. The House of Lords rejected the distinction made by the Court of Appeal between powers
of arrest and other powers to prevent a breach of the peace (eg the power to disperse a
meeting). In all cases the breach of the peace must be ‘imminent’.
Although the House of Lords distinguished Laporte from Moss v McLachlan, the reasoning
in Laporte very much relies on the ECHR principle of proportionality. Even if intervention
had been permissible, the police would have been unable to show that their actions had
constituted a proportionate restriction of Convention rights. Their intervention had been
premature. As extensive precautions had been put in place at RAF Fairford to handle the
protests, it had been unreasonable to assume that the protesters on the coaches would have
become involved in violent protest upon arrival. The police could have taken less drastic
action such as allowing everyone to continue to the airbase and arresting anyone who
subsequently acted, or threatened to act, violently. The police’s conduct was indiscriminate,
failing to distinguish between the majority of protesters who had peaceful intent and the small
minority who actually threatened violence.
However, the decision of the House of Lords in Austin v Commissioner of the Police of the
Metropolis [2009] UKHL shows the police can in limited circumstances take drastic action to
prevent a breach of the peace, even if it adversely impacts innocent bystanders. This case
concerned demonstrators who had been confined within a police cordon at Oxford Circus
for several hours (a practice sometimes described as ‘kettling’) following May Day protests
against globalisation and capitalism, which previously had resulted in serious disorder. On this
occasion as well some of the protesters had threatened violence.
The House of Lords held that those caught in the police cordon did not suffer a violation
of their right to liberty guaranteed by Article 5 of the ECHR, even though some innocent
bystanders were caught up in it. Crowd control measures adopted by the police in order to
prevent a breach of the peace would not breach Article 5 provided they were not arbitrary
but were employed in good faith and were proportionate. In this case, the police intended
to maintain the cordon only so long as was reasonably necessary to achieve a controlled
dispersal in an unusually difficult exercise in crowd control; accordingly there was no arbitrary
deprivation of liberty. There was accordingly only a restriction on movement, which did not
engage Article 5.
Subsequently, in Austin & Others v The United Kingdom [2012] ECHR 459 the European Court
of Human Rights ruled in favour of the UK, stating that the police measures were the least
intrusive possible on the facts and there was no obvious point at which the restriction on
movement turned into a deprivation of liberty.
The common law powers relating to breach of the peace do give the police considerable
discretion in relation to demonstrations and assemblies. However, case law does show that
the police need to show their conduct is a proportionate response to the situation they are
facing to ensure that they do not violate Convention rights.
Summary
• In this chapter, you have looked at police powers to control public processions and public
assemblies.
• Under s 11 POA 1986, organisers of a public procession must, subject to certain
exceptions, give the police six clear days’ advance notice of their plans. The flowchart in
Table 5.1 shows the circumstances in which the organisers should give notice.
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Figure 5.1 Section 11 of the Public Order Act 1986: requirement to give notice
Public procession
Yes
Is it intended to
(a) demonstrate support for or opposition
to views or actions,
(b) publicise a cause or campaign, or
(c) mark or commemorate an event?
Yes No
Written notice not

Written notice reasonably practicable?
practicable?
No advance notice required
Advance notice required
• Under s 12 POA 1986, the police have the power to impose conditions on public
processions if necessary to prevent serious adverse consequences to the community or
intimidation. The police can impose conditions in advance of the procession or during it.
• Under s 13 POA 1986, the chief officer of police may apply to the local authority to
prohibit a public procession if necessary to prevent serious adverse consequences to the
community or intimidation. The local authority must obtain the Home Secretary’s consent
to make the order. The procedure in London is slightly different.
• Under s 14 POA 1986, the police have the power to impose conditions on public
assemblies relating to the place, maximum duration and number of persons if necessary
to prevent serious adverse consequences to the community or intimidation. The police can
impose conditions in advance of the assembly or during it.
• Under s 14A POA 1986 the chief officer of police may apply to the local authority to
prohibit a trespassory assembly to prevent serious disruption to the life of the community
or significant damage to land, buildings or monuments of particular importance. The
prohibition can only last for a maximum of four days and can only cover an area
represented by a circle with a radius of no more than five miles from a specified centre.
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Public Order Law
Sample questions
Question 1
A woman is taking part in a march through the high street of a town in England. The
march is protesting against plans that the Government published two days ago to build
a new prison in the town. The march was scheduled to take place during the visit of
the government minister responsible for prisons to the town, which was only announced
yesterday. The woman learnt about the march from a leaflet that was put through the letter
box of her home. She has been arrested for taking part in an illegal procession.
Is the woman guilty of an offence?
A Yes, because the organisers of the march did not give six clear days’ notice of the
march. The march is therefore illegal.
B Yes, because a march during the controversial visit of a government minister is likely to
cause serious disruption to the life of the community.
C No, because although the organisers have committed an offence by failing to give six
clear days’ notice, the march itself is not illegal.
D No. As it was not reasonably practicable to give advance notice of the march, the
organisers have not committed an offence and in any event the march itself is not
illegal.
E No. Although the organisers have committed an offence by failing to give six clear
days’ notice, she has not committed an offence as she had no knowledge of this
omission.
Answer
Option D is correct. Under s 11(1) POA 1986 organisers of a public procession (march)
must give the police six clear days’ notice if it is for any of the purposes specified in the
section. Protesting against a new prison comes within these purposes. However, if it is not
reasonably practicable to give any advance notice of the procession, there is no duty to
give the notice. Here, the march seems to be an immediate response to the announcement
of the new prison and coincides with the visit of the responsible government minister. If
the organisers had given six clear days’ notice, they would have missed the minister’s visit.
Option D is thus a better answer than option C, as option C sets out what the position
would have been had the duty to give notice applied. Option E is wrong as the marches
remain legal even when the organisers should have given notice; the knowledge of the
marchers whether notice has been given is irrelevant.
Option A is wrong because, as stated above, the march remains legal even if a notice
should have been given. As regards option B, whilst the prospect of serious disruption to
the life of the community may give the police grounds for imposing conditions on the march,
it does not render the march itself illegal.
Question 2
A group of about 100 demonstrators have gathered in a square outside a town hall
protesting against a local authority’s cuts to library services. The time is nearly 17.00
when many of the local authority’s workers will be leaving the town hall and some of
them normally walk through the square on their way home. Most of the demonstrators are
chanting slogans such as ‘Save our libraries’ and ‘Down with the council’, but there has been
no violence. A police sergeant, supervised by her inspector, are the only police at the scene.
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The inspector orders the demonstrators to disperse in the next 15 minutes to ensure that the
workers can go home without any trouble.
Which of the following best describes whether the inspector’s order is lawful?
A As the senior police officer is present, she can impose a condition requiring the
protesters to disperse as the demonstrators’ behaviour will clearly intimidate the local
authority’s workers.
B She has common law powers to order the demonstrators to disperse as she has
reasonable grounds for believing that a breach of the peace will occur.
C Although the inspector is the senior police officer present, she cannot impose
conditions on the protest as she does not have reasonable grounds for believing that
the demonstrators’ behaviour will intimidate the local authority’s workers.
D The inspector does not have any common law powers to order the demonstrators to
disperse, even though she has reasonable grounds for believing that a breach of the
peace will occur.
E Although the inspector does have common law powers, they only empower her to
arrest the demonstrators and not to order them to disperse.
Answer
Option C is correct. As the senior police officer present at the scene, the inspector does
have the power under s 14(1) POA 1986 if she reasonably believes that the assembly will
result in serious public disorder, serious damage to property, or serious disruption to the
life of the community, or the purpose of the organisers is to intimidate others with a view
to compelling them not to do something that they have a right to do, or to do something
that they have a right not to. However, based on Police v Reid, it seems unlikely that the
organisers have intimidatory purpose, and the protest seems unlikely to lead to serious
disruption. For that reason option A is wrong.
The police do have common law powers to prevent a breach of the peace that can be
used to disperse meetings, so option D is wrong. However, option B is wrong because on
the facts there are no grounds for apprehending a breach of the peace as defined in R v
Howell, as the conduct of protesters seems unlikely to result in violence. Option E is wrong
because the common law powers to prevent a breach of the peace are not limited to
arrest, but can include a direction to disperse.
Question 3
A local authority has issued a notice prohibiting trespassory assemblies within the vicinity
of a well-known landmark. A group of about 25 protesters have, with the permission of the
farmer who owns the land, gathered on farm land within the area covered by the notice
and within the time frame specified in it. The farmer said they could remain on the land
as long as they did not camp on it. The police arrested the protesters for taking part in a
trespassory assembly after they put up tents on it.
Which of the following best describes whether the protesters are guilty of an offence
relating to trespassory assemblies?
A They are guilty because they have taken part in an assembly in the area covered by
the notice.
B They are guilty because they have taken part in an assembly on private land in the
area covered by the notice.
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Public Order Law
C They are guilty because they put up tents, breaking the terms of the permission given
by the farmer.
D They are not guilty because the farmer gave them permission to be on the land, so
they are not trespassers.
E They are not guilty because the farmer gave them permission to be on the land, and
they have not threatened to breach the peace.
Answer
Option C is correct. Under s 14A the local authority has the power, with the Home Secretary’s
consent, to prohibit an assembly likely to be held without the permission of the occupier of the
land or to conduct itself in such a way as to exceed the limits of any permission granted by
the occupier. As long as the protesters remain within the limits of the farmer’s permission, the
assembly is not trespassory. However, once they put up tents they have exceeded the limits
of the permission. Options A and B are wrong as they define the type of land covered by a
prohibition notice too widely.
Options D and E are wrong because the protesters have exceeded the limits of the farmer’s
permission.
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6 The Grounds of Judicial Review
6.1 Introduction to judicial review and the grounds of claim 102

6.2 What is judicial review? 103
6.3 Judicial review and fundamental principles of the UK constitution 104
6.4 Identifying the grounds of review 105
6.5 Illegality as grounds for review 106
6.6 Irrationality 113
6.7 The procedural grounds of judicial review 114
6.8 Procedural ultra vires 123
6.9 Legitimate expectations 124
SQE1 syllabus
to functioning legal knowledge concerned with core constitutional and administrative
law principles, including:
• the nature, process and limits of judicial review;
• the supervisory nature of judicial review;
• decisions which may be challenged by judicial review; and
• grounds for judicial review:
∘ illegality;
∘ irrationality;
∘ procedural impropriety; and
∘ legitimate expectation.
purposes only.
Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations,
including the ability to:
• identify and apply the grounds under which judicial review claims may be
brought;
• identify the ways in which a public body may act illegally;
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• apply the concept of irrationality;

• apply the principles of procedural fairness (ie the rules of natural justice: the right
to a fair hearing and the rule against bias) and legitimate expectation;
• identify the consequences of breaching a procedural requirement contained in an
‘enabling’ Act of Parliament; and
• analyse the availability of both the substantive and the procedural grounds of
review, and identify their likely chances of success.
6.1 Introduction to judicial review and the grounds of claim

This chapter starts with an overview of the overlap with constitutional principles and the
grounds of claim. It will then consider in detail each of the grounds:
• illegality
• irrationality
• procedural impropriety.
The chapter will then conclude by looking at the consequences of breaches and how to
analyse the availability of grounds and chances of success with some sample questions.
In this chapter you will begin your study of judicial review, and the diagram in Figure 6.1 is
a ‘road map’ to assist you. The topics you are studying in this chapter are set out under the
heading ‘2. If so, what are C’s likely grounds of challenge?’, in boxes highlighted in bold.
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The Grounds of Judicial Review
Figure 6.1 Judicial review: an overview
1. Can the claimant (‘C’) make a

claim for judicial review?
Does C’s claim ‘Sufficient Within time? Ouster

raise public law interest’? provisions?
issues? Appeal?
Is defendant
amenable to
judicial review?
2. If so, what are C’s likely

grounds of challenge?
Apply (where relevant)

Lord Diplock’s grounds in CCSU:
ILLEGALITY IRRATIONALITY PROCEDURAL

IMPROPRIETY
3. Procedure
4. Appropriate remedy for C?
6.2 What is judicial review?

Judicial review is the mechanism by which the courts ensure that public bodies act within the
powers that they have been granted and do not exceed or abuse those powers.
A court that judicially reviews the actions of a public body is not concerned with the merits of
that body’s decision. Judicial review involves the courts making sure that public bodies make
decisions in the ‘right way’. If the court became concerned with the merits of the decision,
this would encroach on the role of the legislative or executive branches of state, and would
contravene the doctrine of the separation of powers (see 6.3.2 below).
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6.3 Judicial review and fundamental principles of the UK constitution

In Chapters 2 and 4 you considered a number of principles upon which the UK constitution
is based including parliamentary sovereignty, the rule of law and the separation of powers.
Outlined below are ways in which judicial review and these principles are interlinked.
6.3.1 The rule of law

This principle is concerned with government according to the law. In other words, there must
be a proper legal basis for the exercise of power by the state over the citizen, and power
must not be exercised in an arbitrary or oppressive manner. If disputes arise from the exercise
of such power, the courts provide a potential means of redress. They are concerned to see
that statutory duties are complied with properly and that, where statute permits the exercise of
discretion by a decision-maker, such discretion is exercised in a fair manner.
Judicial review can therefore be seen as an example of the judiciary fulfilling its traditional
role, ensuring that justice is done and that the law applies to members of the executive just
as much as it does to the individual. It prevents the exercise of power that does not have a
lawful basis.
6.3.2 The separation of powers

The political doctrine of the separation of powers requires that each of the three branches of
state are kept separate, that their personnel should be unique to each branch, and that they
should be equal in terms of the power each branch wields in comparison with that enjoyed by
the other two branches.
Given the lack of a formal separation of powers in the ‘unwritten’ UK constitution, it is therefore
important that the courts provide a counter-balance to the prominence of the executive within
the constitution and a dispute-resolution mechanism. This is particularly important when the
Government exercises such a large measure of control over the House of Commons (see
4.3.4.1 in Chapter 4).
In the judicial review process, the legislative branch passes policy-implementing powers to the
executive branch, whilst the judicial branch ensures that the executive branch does not abuse
those powers but stays within the parameters of discretion imposed by the legislative branch.
Judicial review can be seen as an example of the separation of powers working smoothly.
The legislature decides how much decision-making power the executive should be given, the
executive then exercises that power, and the judiciary oversees the executive’s use of that
power. It is a system that ensures that the executive does no more than the legislature has
allowed it to do.
There is another way in which judicial review may be linked to the idea of the separation of
powers. In judicially reviewing actions or decisions of the executive, the courts are concerned
only that such steps have been exercised in the correct way and using the correct procedure.
The courts are not concerned with the merits of any decision. If the courts were to address the
merits of a decision, this would trespass on the role of the executive.
6.3.3 Parliamentary sovereignty

The common law doctrine of parliamentary sovereignty provides that Parliament can pass any
statute it wishes and such law cannot then be overridden or set aside.
Judicial review does not conflict with this doctrine, because review is available only in respect
of secondary legislation. The courts do not normally question primary legislation, which would
clearly breach parliamentary sovereignty. During the UK’s membership of the EU the principle
of supremacy of EU law applied, but the EUWA 2018 largely terminated this principle at the
end of the transition period.
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In addition, when a court judicially reviews the action or decision of a public body, that
body will normally have been acting under powers granted to it by Parliament. The court
will examine whether the body has acted in accordance with the powers granted to it by
Parliament, or whether it has exceeded or abused those powers. In this way, the court will
be upholding parliamentary sovereignty by ensuring that public bodies act as Parliament
intended.
Another way of understanding the relationship between judicial review and the basic
constitutional principles you considered in Chapters 2 and 4 is to consider the diagram in
Figure 6.2.
Figure 6.2 Judicial review and constitutional principles
Parliament
• Ministers are responsible to it (convention of ministerial
responsibility).
• May create public bodies through legislation.
• Via primary legislation, may confer powers on government
ministers and public bodies.
Government
• May create delegated legislation.
• Exercises statutory powers conferred by Parliament.
• Exercises powers under the royal prerogative.
Judiciary
• Exercises powers of judicial review.
• Scrutinises via judicial review delegated legislation and
the exercise of statutory/prerogative powers by the
Government.
6.4 Identifying the grounds of review

Lord Diplock, in CCSU v Minister for Civil Service [1984] UKHL 9, identified three grounds of
domestic judicial review. These grounds are:
(a) illegality;
(b) irrationality; and
(c) procedural impropriety.
Illegality and irrationality are referred to as the substantive grounds of review. This is because
they focus on the ‘substance’ of the decision under review.
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Procedural impropriety focuses instead on the procedure followed in arriving at the decision
under review.
In addition to these three domestic grounds, judicial review claims can also be made under
two further ‘European’ grounds:
(a) breach of the ECHR; and
(b) breach of retained EU law.
Breach of the ECHR will be considered as a ground of judicial review claim in Chapter 9.
Breach of retained EU law will not be considered in detail in this manual. In practice it is
nonetheless important, and lawyers ignore it at their peril.
6.5 Illegality as grounds for review

6.5.1 How might illegality occur?
An action is illegal or ultra vires if it is beyond the powers of the public body in question
either because the powers claimed do not exist, or because they are exceeded or abused in
some way.
We will now consider in turn the various heads of illegality.
6.5.1.1 Acting without legal authority

Public authorities cannot act without legal authority, as confirmed by the House of Lords in the
case of R v Richmond-upon-Thames LBC, ex p McCarthy and Stone (Developments) Ltd [1992]
2 AC 48.
McCarthy and Stone were developers who consulted with the planning officers of Richmond
LBC before deciding whether to make a planning application. They were charged for the
informal consultation. Richmond LBC argued it was entitled to levy a fee for this under a
power contained in s 111 of the Local Government Act 1972 to do ‘anything incidental to the
discharge of any of [its] functions’. McCarthy and Stone applied to the High Court for judicial
review, claiming that s 111 did not allow Richmond LBC to charge a fee, so that the council
was acting without legal authority.
Both the High Court and the Court of Appeal found for Richmond LBC, but the House of
Lords found for McCarthy and Stone. The Law Lords stated that the charges imposed for
providing informal pre-application planning advice were ultra vires because of the lack of a
relevant power.
6.5.1.2 The rule against delegation

The rule
There is a general rule that decision-making powers, once given by Parliament, cannot
then be further delegated, or ‘sub-delegated’. This rule was confirmed in the case of Vine v
National Dock Labour Board [1957] AC 488.
In this case, the Dock Workers (Regulation of Employment) Order 1947 gave local dock labour
boards the power to take disciplinary action against dock workers. A complaint was made
against Vine, alleging that he had regularly reported late for work. The relevant local dock
labour board appointed a committee to deal with the complaint. After hearing evidence, the
committee terminated Vine’s employment. The House of Lords held that the decision to dismiss
Vine was void because the duty of the local board could not be delegated to a separate
committee. Lord Somervell commented:
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There are … many administrative duties which cannot be delegated. Appointment

to an office or position is plainly an administrative act. If under a statute a duty to
appoint is placed on the holder of an office, whether under the Crown or not, he
would, normally, have no authority to delegate.
Exceptions to the rule against delegation

There are two important exceptions to the general rule against delegation, namely the
‘Carltona principle’ and s 101 of the Local Government Act 1972.
(a) The ‘Carltona principle’
In the case of Carltona v Commissioners of Works [1943] 2 All ER 560, the relevant
legislation specified that the power to requisition factories during World War II was
exercisable by the Minister of Works and Planning. A factory owner whose factory had
been requisitioned argued that the requisition was invalid because the order had not in
fact been signed by the minister, but by a civil servant within the Ministry.
In the judgment Lord Greene MR confirmed that government ministers sub-delegating
decision-making powers to civil servants in their departments provides an exception to
the general rule against delegation. He stated that, under the convention of individual
ministerial responsibility (which you considered in Chapter 4), government ministers are
ultimately responsible to Parliament for their departments, so there is an expectation that
they act through their civil servants in taking even major decisions.
(b) Local Government Act 1972, s 101
Under s 101 of the Local Government Act 1972, local authorities may delegate decision-
making powers to committees, sub-committees or to individual officers, provided they
make a formal resolution so to do.
6.5.1.3 ‘Fettering’ of discretion

As a general principle, if Parliament provides a public body with a discretionary power, the
courts will not permit that body to restrict or ‘fetter’ such discretion.
‘Fettering’ of discretion may occur in two ways:
(a) acting under the dictation of another; or
(b) applying a general policy as to the exercise of discretion in too strict a manner.
We shall look at each of these further below.
Acting under the dictation of another

Public authorities cannot act under the dictation of another person or body. In the case
of Lavender & Sons Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231
Lavender & Sons were refused planning permission to extract sand and gravel from high-
grade agricultural land. The letter containing the minister’s decision stated that he would not
grant permission for mineral extraction ‘unless the Minister of Agriculture is not opposed to
[mineral] working’ and that as, in the present case, the agricultural objection had not been
waived, he had decided not to grant permission. Lavender & Sons sought judicial review of
the rejection of their appeal.
The court found for Lavender & Sons, stating that although the minister was entitled to
formulate a general policy, this decision had not been based on a general policy but on
another minister’s objection. The Minister of Housing and Local Government had fettered his
discretion by not opening his mind to Lavender & Sons’ application.
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Applying a general policy as to the exercise of discretion in too strict a manner

Sometimes Parliament requires public authorities to exercise powers in large numbers of
similar cases. For example, local authorities have to decide numerous planning applications.
Fairness requires that like cases should be decided in like ways, and so public authorities
may formulate their own policies to help them take consistent decisions but this should not be
undertaken in such a way as to ‘fetter discretion’.
In the Case of British Oxygen v Minister of Technology [1971] AC 610, the Ministry of
Technology formulated a general policy relating to the awarding of grants in respect of
capital expenditure, but only for items costing at least £25. British Oxygen had spent over
£4 million investing in oxygen cylinders, but each cylinder only cost £20. Therefore, under strict
application of the policy, British Oxygen’s grant application was rejected as each item cost
only £20.
The House of Lords held that the Ministry of Technology did have the right to formulate its own
general policy, but only provided the policy did not preclude the Ministry from considering
individual cases. If the policy had been applied over-rigidly, the minister would effectively
have tied his own hands, preventing him from considering each case on its merits. Lord Reid
stated that anyone who has a statutory discretion must not shut his ears to an application and
must be always willing to listen to anyone with something new to say. Nonetheless, on the
facts the House of Lords held that the Ministry had acted properly.
6.5.1.4 Using powers for an improper or unauthorised purpose

Public authorities will be acting illegally if they use their powers for an improper or
unauthorised purpose. In the case of Congreve v Home Office [1976] 1 QB 629, the
Government announced that the price of a TV licence would soon go up from £12 to £18.
Congreve was one of over 20,000 people who took out a new TV licence before the old
one expired, so as to avoid paying the extra cost. The Home Office wrote to those who had
purchased their licence before the new charge came into effect demanding the payment of
the extra cost, failing which their licences would be revoked. Congreve sought judicial review
of the threatened revocation.
The Court of Appeal found for Congreve, stating that the Home Office had no authority to
revoke the licences. The purpose of revoking the licence was simply to raise revenue, in a way
not provided for by Parliament. The Court of Appeal added that this would represent a misuse
of the power conferred on the Government by Parliament.
6.5.1.5 Dual purposes

What happens in situations where a public authority arrives at a decision based on more than
one consideration, one of which is relevant to the purpose of the power it is exercising, the
other of which is irrelevant?
Over a century ago, the House of Lords established the ‘primary purpose’ test in the case of
Westminster Corporation v LNWR [1905] AC 426. The London and Northern Western Railway
Company (LNWR) sought judicial review of the Westminster Corporation’s decision, under
public health legislation, to build underground lavatories at Whitehall. The lavatories could be
accessed from either side of the street, effectively creating a subway, thereby making it easier
for people to trespass on the LNWR’s land. The LNWR argued that the main reason behind
the Corporation’s decision to build the toilets had not been to provide conveniences but,
rather, to build a subway, which the legislation had not authorised.
The House of Lords found in favour of the Westminster Corporation, deciding that the primary
object of the Corporation was the construction of the conveniences with the requisite and
proper means of approach thereto and exit therefrom. Their Lordships held that where there
are dual purposes behind a decision, provided the permitted/authorised purpose is the
‘primary’ purpose, then the decision is not ultra vires and should stand.
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In R v Inner London Education Authority, ex p Westminster City Council [1986] 1 WLR 28 the
court used a different formulation. The Inner London Education Authority (ILEA) had statutory
power to ‘arrange for the publication within [its] area information on matters relating to
local government’. ILEA mounted a publicity campaign costing £651,000 concerning the
Government’s proposals for rate-capping, which would limit the amount it could raise in local
taxation and thus spend on education. Westminster City Council sought a declaration that this
was unlawful.
The High Court held that ILEA had sought to achieve two purposes:
(i) Giving information about rate-capping and its results; this was an authorised purpose.
(ii) Persuading the public to support ILEA’s views on rate-capping; this was not an authorised
purpose.
The test that the High Court applied when there were two purposes, one authorised and one
unauthorised, was as follows: ‘Was the authority pursuing an unauthorised purpose, which
materially influenced the making of its decision?’
The High Court considered that the unauthorised purpose was one of the purposes, if not
the major purpose, of the decision to launch the campaign. The unauthorised purpose had
therefore materially influenced the making of the decision and therefore the decision was
unlawful, because ILEA had taken into account an irrelevant consideration.
Although the High Court thought that the ‘material influence’ test was consistent with the
‘primary purpose’ test in the 1905 case, the two tests are not easy to reconcile.
6.5.1.6 Taking account of irrelevant considerations or failing to take account of relevant considerations
A public authority must both disregard irrelevant considerations and take into account relevant
considerations when exercising its powers. The case of Roberts v Hopwood [1925] AC 578 is
authority for both requirements, despite the outmoded language used by the Law Lords.
Poplar Borough Council had exercised its power under statute to pay its employees such
wages ‘as it saw fit’. It set a generous minimum wage and applied the minimum to female
workers in the same way as it did to male workers. The District Auditor ordered that the
council make good the financial losses caused by paying its employees so generously. The
council sought judicial review of the District Auditor’s order.
The House of Lords found for the District Auditor, first because the council had taken account
of irrelevant considerations, namely, ‘socialist philanthropy’ and ‘feminist ambition’, and,
secondly, because the council had also disregarded relevant considerations, namely the wage
levels in the labour market and the burden that would be placed on the ratepayers as a
consequence of its decision.
It need not always be the case that a public authority both takes into account an irrelevant
consideration and fails to take into account a relevant consideration. It may simply do one or
the other as the case of Padfield v Minister of Agriculture [1968] AC 997, a leading case on
taking into account irrelevant considerations, shows.
The Agricultural Marketing Act 1958 gave the Minister of Agriculture the discretionary power to
order an investigation by a committee into complaints made by farmers about the conduct of
the Milk Distribution Board, a public body set up to regulate the distribution of milk products.
A number of farmers made a complaint to the minister, alleging that the Board had fixed
milk prices in a way that was prejudicial to their interests. The minister refused to order an
investigation, stating that if the complaint were upheld he would be expected to give effect to
the committee’s recommendations.
The House of Lords held the minister had taken into account an irrelevant consideration
in deciding not to exercise his discretion to order an investigation. The potential political
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embarrassment to the minister was not a matter the minister ought to have taken into account
when refusing to consider the complaint.
The example exercise that follows will help you to apply the principle of illegality to a set
of facts.
Example
Assume that the Public Transport Act 2016 (‘the Act’) (fictitious) empowers local authorities
to give financial assistance in the form of grant aid to organisations involved in operating
any form of public transport. The aim of the Act is to encourage the use of public transport
to get people to work.
Greenborough District Council (GDC) has created a policy as to how it will deal with
applications for grant aid. The policy provides, amongst other things, that applications
from minibus operators should not be considered as there is no evidence that such
vehicles are regularly used in travel to and from work, and exhaust emissions from
minibuses are harmful to the environment.
Tariq has operated a minibus company for the past five years. He has recently secured
contracts with two large employers in the area to provide transport for their workforce.
His application for a grant has been refused without consideration, on the basis of GDC’s
policy.
Joanna is a taxi cab licence holder and has applied for a grant to expand her business
into operating minibuses. Her application was also refused. The decision was made by
GDC’s Transport Sub-Committee.
Consider whether Tariq and/or Joanna can challenge the decisions of GDC in respect of
their applications for grant aid.
Answer
Before reviewing the answers, consider whether the policy itself is lawful and whether
Tariq or Joanna could rely on the following categories of illegality:
• Fettering of discretion
• Taking into account irrelevant considerations
• Improper purpose
• Wrongful delegation
Policy
The statute has created a discretion in respect of the award of grant aid to organisations.
Any discretion must be exercised reasonably in accordance with the aims of the statute
(you will look at the requirement of reasonableness later). GDC has created a policy as
to how applications for grant aid should be processed. There is no objection in principle
to the formulation of such a policy by a public authority, provided the policy itself is
consistent with the statute. Furthermore, any policy must not be applied in an overly rigid
manner so as to fetter GDC’s discretion (discussed below).
Irrelevant considerations/improper purpose

In this particular case, Tariq can first argue that the policy itself is not consistent with
the statutory purpose. The policy seeks to prevent applications from minibus operators
because, amongst other things, exhaust emissions are harmful to the environment. The
environmental issue is not clearly a purpose the legislation was aimed at achieving, and
therefore GDC has taken into account an irrelevant consideration (Padfield v Minister of
Agriculture [1968] AC 997). Putting this another way, if GDC has tried to use the statute to
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further environmental objectives, it is using the statute for an improper purpose (Congreve
v Home Office [1976] 1 QB 629).
This could, alternatively, be a case of mixed motives, whereby GDC has in fact achieved
two objectives, one of which is authorised (preventing use of private minibuses) and
one of which is not (promoting ecological issues). If the primary purpose is lawful
then obtaining an incidental advantage may not invalidate the exercise of the power
(Westminster Corporation v LNWR [1905] AC 426), but much will depend on what the
primary purpose was here. Furthermore, in more recent case law, the courts have
considered whether the unauthorised purpose ‘materially influenced’ the decision
(R v ILEA, ex p Westminster City Council [1986] 1 WLR 28). Tariq would need to establish
that the ecological issues materially influenced GDC’s formulation of its policy.
Fettering of discretion
Even if the policy itself is lawful, Tariq could argue that it has been over-rigidly applied
in his particular case. Although he operates minibuses, he should be treated as an
exception to it, having secured contracts from two employers in the area to transport their
workers (British Oxygen v Minister of Technology [1971] AC 610).
Wrongful delegation
Joanna can only raise the fact that the decision was taken by the Transport Sub-Committee.
However, under s 101 of the Local Government Act 1972, councils are allowed to delegate
their decision-making to council committees or sub-committees. If the GDC has formally
delegated its functions in this case, Joanna would not have any grounds of review.
Conclusion
GDC is entitled to formulate a general policy to guide it in its exercise of its discretionary
powers. However, the policy must be lawful. In this case, it seems GDC’s policy is unlawful
as GDC, through pursuing environmental objectives not envisaged by the empowering
statute, has taken into account an irrelevant consideration and is pursuing an improper
purpose, which has materially influenced its decision.
Even if the policy were lawful, GDC has fettered its discretion by applying its policy over-
rigidly. It should have considered Tariq’s evidence regarding his contracts.
Tariq therefore has a very good chance in succeeding in a judicial review claim.
In contrast, Joanna is unlikely to succeed, as GDC has probably delegated the decision-
making power lawfully.
6.5.1.7 Errors of law/errors of fact

Errors of law
Errors of law that affect a decision will always be amenable to judicial review, as confirmed in
the case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
The Foreign Compensation Commission (FCC) had statutory responsibility for deciding on
claims for compensation made by UK companies that had suffered losses as a result of war
damage overseas. Under the relevant legislation, the owners of damaged property and their
‘successors in title’ had to be UK subjects. Anisminic was a UK company that, as a result of the
Suez Crisis in 1956, had been forced to sell property it owned in Egypt to an Egyptian business
for less than its market value. Anisminic applied to the FCC for compensation.
The FCC rejected the claim on the basis that Anisminic had sold its property to a non-UK
business. The House of Lords held that, as a matter of law, a purchaser was not a successor in
title. A majority of their Lordships held that such an error of law made the FCC’s decision not
just wrong but outside of its jurisdiction. An error of law will always therefore be amenable to
judicial review.
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Errors of fact
Public authorities dealing with the same issues on a daily basis develop expertise in assessing
facts, and it would overload the courts if they had to decide all the factual disputes that arise
from executive decisions. So the courts are more reluctant to allow judicial review for errors of
fact than errors of law. Some errors of fact are, however, amenable to judicial review.
(a) ‘Jurisdictional’ errors of fact
Alleged ‘jurisdictional’ errors of fact are reviewable by the courts, as confirmed in the
case of R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74.
The Immigration Act 1971 allowed the Home Secretary to order the removal from the UK
of ‘illegal entrants’. The Home Secretary made such an order in respect of a Mr Khera.
Khera’s lawyer sought judicial review of the order on the grounds that the Home Secretary
had got a central fact wrong, in that Khera had not, as the Home Secretary had thought,
tried to hide his entry into the UK, and he was therefore not an illegal entrant.
The House of Lords decided that the matter was amenable to judicial review and found
for Khera. Their Lordships stated that decisions based on alleged errors of fact that go to
the root of a public authority’s capacity to act (ie ‘jurisdictional’ or ‘precedent’ facts) are
reviewable. This was such an error of fact, since the Home Secretary would not have been
able to rely on the Act if Khera genuinely had been legally in the UK.
(b) Other errors of fact
‘Non-jurisdictional’ errors of fact are not usually amenable to judicial review. The courts
will defer to the decision of the decision-maker designated by statute.
The example exercises that follow will help you to distinguish between error of law and fact.
Examples
(a) A local authority has a statutory power to buy land compulsorily unless it is residential
land, including parks and gardens. The authority makes a compulsory purchase
order in respect of some farmland. The owner asserts that the land is in fact part of a
park. Is this an error or law or of fact, and, if the latter, is it ‘jurisdictional’?
Answer
Whether farmland is part of a park and therefore ‘residential land’ depends on
evidence and is therefore a question of fact. Assuming that the local authority has
made an error, its decision can be challenged on the basis that it has made a
‘jurisdictional’ error of fact. Under the statute, the local authority did not have the
jurisdiction to make a compulsory purchase order if the land was in fact part of a
park. This is a ‘precedent fact’ relevant to the exercise of the power (R v Secretary of
State for the Home Department, ex p Khawaja).
(b) A statutory tribunal has power to fix rents for unfurnished lettings. The relevant statute
provides that a letting is furnished if a substantial part of the rent is attributable to
the use of furniture. The tribunal fixes the rent of a flat in one case where the landlord
has provided a threadbare carpet and a broken settee. The landlord objects on the
grounds that the flat is furnished. Is this an error or law or of fact, and, if the latter, is
it ‘jurisdictional’?
Answer
The decision will only be reviewed by the court if there is a ‘jurisdictional’ error of fact,
as in example (a) above. The issue here is whether the provision of a carpet and a
settee means that the property is in fact furnished. This depends on the evidence, and
therefore, if an error has been made, it is an error of fact. Under the statute, the tribunal
had no power to deal with a furnished letting, so the error would be jurisdictional.
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6.6 Irrationality
Successful challenges under the irrationality ground of review require proof of a very high
degree of unreasonableness. This is possibly due to concerns on the part of the judiciary that
ruling on irrationality will open the courts up to accusations of judging the merits of a decision
rather than whether the decision was arrived at lawfully.
As the courts have used different tests over the years, we need to consider how the test for
irrationality has developed.
6.6.1 The ‘Wednesbury Principle’

The concept of irrationality hails from the landmark case of Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The owners of a cinema were granted
a licence by a local authority to show films on Sundays, but only on condition that no under-
15s were admitted (whether with an adult or not). The owners challenged the decision on the
grounds that the condition was unreasonable.
The test for unreasonableness laid down by Lord Greene MR was whether, having regard
to relevant considerations only, the decision-maker came to a conclusion so unreasonable
that no reasonable authority could ever have come to it. In this instance, the Court of Appeal
found for the authority (on the basis that it had made no error of law and its policy was not
‘manifestly unreasonable’), but the importance of the case is the test that it established.
Before the test was further developed in 1984, irrationality was more commonly referred to as
the ‘Wednesbury principle’, or ‘Wednesbury unreasonableness’.
6.6.2 Developments post-Wednesbury

The Wednesbury test stood unaltered until CCSU v Minister for Civil Service [1984] UKHL 9,
in which Lord Diplock stated that, to be irrational, a decision needed to be so outrageous
in its defiance of logic, or of accepted moral standards, that no sensible person could have
arrived at it.
Although irrationality can be hard to establish, it is not impossible. Public authorities may still
fail the test, as happened in the case of Wheeler v Leicester City Council [1985] AC 1054.
Leicester City Council opposed sporting links with South Africa, which at the time was ruled
by a white minority government that imposed oppressive apartheid policies on its population.
Three players from Leicester, one of the top rugby clubs in the country, were selected by
England to tour South Africa. The club said that it condemned apartheid, but it was up to
the players to decide whether they should go on the tour with the national side. The players
concerned did travel to South Africa, and the council decided to ban the club from using a
council-owned recreation ground.
The club’s application for judicial review succeeded. According to the House of Lords, the club
could not be punished because it had done nothing wrong; it was not illegal for the players
to take part in the England rugby tour of South Africa. By using its powers to punish someone
who had acted legally, the council had misused them and so had acted unlawfully and
Wednesbury unreasonably. However, as is often the case, the House of Lords also justified the
decision on the alternative ground of procedural unfairness.
A more recent example of the application of the test for irrationality is the case of R (DSD
and others) v Parole Board [2018] EWHC 694 (Admin). This case involved a challenge to the
decision of the Parole Board to release John Worboys, the ‘Black Cab Rapist’, on parole.
The court held that it was irrational for the Parole Board not to undertake further inquiry into
the circumstances of his re-offending. Worboys admitted to only 12 sexual offences, whereas
the information given to the Parole Board indicated his involvement in over 80 offences.
This potentially undermined his credibility and reliability –key issues relating to the release
decision.
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The example exercise that follows will give you an opportunity to apply the various tests for
irrationality, as well as considering aspects of illegality.
Example
Assume that, to combat traffic congestion in urban areas, Parliament passed the Parking
Restrictions Act 2008 (‘the Act’) (fictitious), giving local authorities power to ban parking of
cars ‘in such areas as they think fit’.
Herbert lives near a busy main road in the centre of Redton. He has received a letter from
the ‘Transport Officer’ of Redton Borough Council stating that he is no longer allowed to
park his car on his driveway.
Consider whether Herbert can challenge this decision on grounds of irrationality. Could
any other ground(s) of challenge be relevant?
Answer
Irrationality
Although there is a statutory power to ban parking of cars ‘in such areas as [Redton
Borough Council] think[s]‌fit’, the aim of the legislation was to combat traffic congestion in
urban areas. Herbert will argue that banning him from parking on his own driveway is not
a rational exercise of that power.
Applying the Wednesbury principle from Associated Provincial Picture Houses Ltd v
Wednesbury Corporation [1948] 1 KB 223, the court must ask itself if it is a decision that
no reasonable local authority could have arrived at and, bearing in mind Lord Diplock’s
terminology in CCSU v Minister for Civil Service [1984] UKHL 9, if it could be regarded as
‘outrageous in its defiance of logic’.
Other grounds of challenge?

1. Delegation. On the face of it, the exercise of the power by the officer breaches the
rule against delegation. However, s 101 of the Local Government Act 1972 allows
powers given to local authorities to be exercised by officers on their behalf.
2. Unauthorised purpose. As noted above, the power was conferred by Parliament to
combat traffic congestion. Preventing Herbert from parking on his driveway does not
seem to be part of that purpose (Congreve v Home Office [1976] 1 QB 629).
6.7 The procedural grounds of judicial review

Procedural grounds of review differ from the substantive grounds in that they focus not on the
decision itself, but instead on the procedure followed in arriving at the decision under review.
The next example exercise will enable you to distinguish between ‘substantive’ and
‘procedural’ grounds of challenge.
Example
Assume that a statute sets up a tribunal to determine appeals from welfare benefit
claimants who have had their claims rejected.
Which of the following complaints would be procedural and which substantive? Why
should claimants be able to use procedural grounds of challenge?
(a) Claimant A says that the tribunal has made findings about his private life that he had
no chance to contest before the tribunal.
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(b) Claimant A also says that the findings about his private life are wrong.
(c) Claimant B says that she has not been told by the tribunal why her appeal was
refused.
(d) Claimant C says that a member of the tribunal deciding his case is a neighbour with
whom he has quarrelled in the past.
Answer
All the above complaints are procedural apart from (b). What they have in common is
that they are about the steps leading to and the circumstances surrounding the tribunal’s
decision, rather than the decision itself.
Procedures should be open to challenge because the claimant needs to know that their case
was handled fairly, quite apart from whether the decision affecting them was right or wrong.
Many procedural requirements, on which a decision’s validity depends, are found in the
statutes that confer the decision-making powers. To breach such requirements is said to be
‘procedurally ultra vires’.
Other requirements are derived from the common law rules of natural justice or, as it is
now widely known, the doctrine of ‘procedural fairness’. We shall examine the common law
procedural requirements first.
6.7.1 Procedural fairness –the rules of natural justice

The development of the rules of natural justice has led to some controversy. They are common
law rules, meaning that they were created by the judiciary, an unelected body. The legal
doctrine of parliamentary sovereignty requires that it should be the legislature, rather than
the judiciary, that makes law. The rules of natural justice have, however, become an accepted
part of administrative law. In the case of Fairmount Investments Ltd v Secretary of State for the
Environment [1976] 1 WLR 1255, Lord Russell stated that:
It is to be implied, unless the contrary appears, that Parliament does not authorise
by the statute the exercise of powers in breach of the rules of natural justice and that
Parliament does … require compliance with those principles.
There are two rules of natural justice:
(a) the rule against bias (which provides that a decision-maker should have no personal
interest in the outcome of his decision); and
(b) the right to a fair hearing.
6.7.1.1 The rule against bias

The application of the rule against bias depends on whether the interest the decision-maker
has in the outcome of the decision is ‘direct’ or ‘indirect’.
This distinction is important because, where the interest is direct, the court is normally obliged
automatically to ‘quash’ the decision as bias on the part of the decision-maker is presumed.
6.7.1.2 Direct Interests

In Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301, the House of Lords established
that an interest that may lead to financial gain falls into the direct interest category.
In that case, the Lord Chancellor at the time, Lord Cottenham, awarded various injunctions to
Grand Junction Canal Proprietors in their ongoing litigated dispute with Mr Dimes. Dimes then
discovered that Lord Cottenham had, for 10 years, held significant shares in Grand Junction
Canal Proprietors. Dimes therefore appealed to the House of Lords against the injunction
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orders. The House of Lords found for Dimes, stating that Lord Cottenham should have been
disqualified from hearing the case because he had a direct interest in the outcome.
In R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex p Pinochet Ugarte
(No 2) [2000] 1 AC 119, the House of Lords added a new element to this principle. General
Augusto Pinochet was indicted for human rights violations committed in his native country
while he was the head of the military dictatorship that ruled Chile between 1973 and 1990. He
was indicted by a Spanish magistrate on 10 October 1998 and arrested in London six days
later pursuant to an international arrest warrant. Initially, he was successful in challenging his
arrest in the courts, with the Lord Chief Justice, Lord Bingham, ruling that he was ‘entitled to
immunity as a former sovereign from the … English courts’.
The House of Lords disagreed in R v Bow Street Metropolitan Stipendiary Magistrate and
Others, ex p Pinochet Ugarte (No 1) [2000] 1 AC 61. In November 1998 the Law Lords ruled
by a majority of three to two that state immunity applied only to acts that international law
recognised as being amongst the functions of a head of state, and this did not include torture
or hostage taking. Lord Hoffmann was one of the judges giving the majority decision, but
it subsequently became apparent that he had been an unpaid director and chairman of
Amnesty International Charity Ltd (AICL) since 1990. AICL was wholly controlled by Amnesty
International, which had been allowed to intervene in the appeal. Pinochet sought to have the
decision set aside on this basis, arguing that Lord Hoffmann had an interest that disqualified
him from taking part in the case.
Lord Browne-Wilkinson classified the case as one in which the decision-maker is a judge in
his own cause. Previously this category had been confined to cases of direct financial or
proprietary interest in the case. Lord Browne-Wilkinson decided that the category should
be extended to cases of non-pecuniary interest, where the decision-maker is involved in
promoting the same cause as a party to the case.
The Law Lords in the Pinochet (No 2) case thought that the public could not have complete
faith that bias had played no part in the original decision because Lord Hoffmann had an
apparently direct interest, albeit one from which he did not stand to benefit financially, which
should have disqualified him from sitting on the panel. The decision was therefore overturned.
6.7.1.3 Indirect interests

So when does an interest fall short of amounting to a direct interest and amount instead to an
indirect interest? An example might be where it is a relative of the decision-maker who has the
interest.
In such cases, the reviewing court cannot simply quash the decision automatically; it has
to investigate the relationship between the indirect interest and the decision, and decide
whether the decision should be quashed on the basis of apparent bias. The case of Porter v
Magill [2002] 2 AC 357 is a leading case on this topic.
This case concerned Dame Shirley Porter, the Conservative leader of Westminster City Council.
As the 1990 local authority elections approached, she offered council house tenants the
opportunity to buy their homes. She was accused of deliberately targeting tenants in marginal
wards to try to increase her prospects of re-election.
Magill was the auditor who investigated claims that this was an abuse of power by Dame
Shirley. Before the very lengthy investigation was complete, Magill called a press conference,
at which he said initial results of the investigation suggested strongly that Dame Shirley would
be found guilty of abuse of power. Dame Shirley was eventually found guilty and ordered to
pay a large fine.
However, Dame Shirley challenged the finding on the ground that it breached the common
law rule against bias. She argued that Magill had, through having stated at the press
conference that all the signs were that she would be found guilty, put irresistible pressure
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on himself to ensure that the final verdict would indeed be that she was guilty, so as not to
lose face.
The House of Lords agreed that it had been unwise of Magill to call a premature press
conference, but disagreed that there was any evidence of bias. The Law Lords were
nonetheless satisfied that Magill had not unwittingly created for himself an indirect interest in
the outcome of the investigation.
The House of Lords said that the following test should be applied in cases of indirect
bias: would a fair-minded and impartial observer conclude that there had been a real
possibility of bias? The court does not ask whether the decision was in fact affected by the
bias of the decision-maker, but how the decision would appear to the observer.
Another case that illustrates this rule is R v Pintori [2007] EWCA Crim 170. The appellant
was convicted of possessing a Class A drug after several police officers had raided his flat.
Following the trial, it became apparent that one of the jurors was a civilian working for the
police who knew some of the officers involved in the raid reasonably well. The appellant
appealed against his conviction on the ground that there was a real possibility that the juror
and therefore the jury as a whole was biased against him.
The Court of Appeal allowed the appeal, holding that the appellant did not have a fair trial
because the fact that the juror knew the officers would, of itself, have led the fair-minded and
informed observer to conclude that there was a real possibility of bias on her part. Such a
person would have concluded that the juror was disposed to find the appellant guilty simply
because she knew the officers, had worked with them, and therefore wanted (consciously or
unconsciously) to support them in the prosecution. Although the deliberations of a jury are
secret, the fair-minded and informed observer would also have concluded that there was a
real possibility that the juror had influenced her fellow jurors, leading to the conclusion that
there had been a ‘real possibility’ of bias.
6.7.1.4 The right to a fair hearing

The right to a fair hearing is the second common law rule of natural justice. In Board of
Education v Rice [1911] AC 179, Lord Loreburn stated that there is a duty on decision-makers
to act in good faith and listen fairly to both sides.
The right to a fair hearing is flexible and depends on the context of each individual case.
Fairness and the claimant’s interest

What precisely is required to be done in order to achieve ‘fairness’ will depend partly upon
the nature of the claimant’s interest.
A key determining factor applied by the courts in deciding whether a hearing has been fair is
the question of how much the claimant had to lose (ie the nature of the claimant’s interest).
In McInnes v Onslow-Fane [1978] 1 WLR 1520, Megarry V-C established three categories of
claimant, depending on the nature of their interest:
(a) Forfeiture cases: cases where the claimant had the most to lose, such as their livelihood
or job. These involve the claimant having been deprived of something they previously
enjoyed. Such claimants are entitled to expect a lot more from their hearing for it to be
considered to amount to a fair hearing.
(b) Legitimate expectation cases: cases where it was legitimate for the claimant to expect
that an established practice would continue, when seeking the renewal or confirmation
of some licence, membership or office that they have held previously. This category also
includes those seeking renewal of some form of payment (such as state benefits).
(c) Application cases: cases where the claimant is the first-time applicant who merely seeks
a licence, membership or office that they have not held previously. Such claimants are
entitled to expect a lot less from their hearing for it to be considered to amount to a fair
hearing.
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In the next example exercise you will consider into which category a potential claimant falls.
Example
Under the Factory Safety Act 2021 (fictitious), the Factory Approval Board (‘the Board’) is
given the power to regulate matters of health and safety in factories. Any person wishing
to open a new factory must apply to the Board for a licence. All existing factory owners
must apply to the Board for a licence to continue operating.
The Board publishes a circular that states that, in order to ensure the health and safety
of workers, it will grant a licence to someone wishing to open a new factory only if that
person can show that health and safety training will be provided to all those who are to
work at the factory.
1. Terence applies to the Board for a licence to open a new factory to manufacture
industrial lathes. Terence has never previously operated any factory premises.
2. Charlotte has operated a factory making garden ornaments for 10 years. When she
applies for a licence to continue operating her factory, she is informed by the Board
that her factory is to shut forthwith.
3. Paul applies to the Board for a licence to open a new factory that will manufacture
computer components. As part of his application, Paul supplied the Board with details
of an agreement he has reached with a company that will provide all his prospective
employees with two weeks’ worth of health and safety training.
Identify whether Terence, Charlotte and Paul respectively fall into the category of
forfeiture, legitimate expectation, or mere applicant.
Answer
1. Terence is a mere applicant. He is seeking a licence that he has not held previously.
2. Charlotte’s case is one of forfeiture. She is being deprived of something (ie the right
to use her factory) that she already has.
3. Paul has a legitimate expectation that his application will be granted. It is legitimate
for him to expect to receive a licence to operate his factory because he appears to
meet the criteria set out in the Board’s circular.
Forfeiture cases
For an example of a forfeiture case, consider Ridge v Baldwin [1964] AC 40. Ridge was the
Chief Constable of Sussex. Together with some more junior officers, Ridge was accused of
conspiracy to obstruct the course of justice. The other officers were found guilty but Ridge
was acquitted. Despite his acquittal, the trial judge criticised Ridge for not having set a good
example to the junior officers. Ridge was dismissed the following day, apparently on the
strength of the judge’s comments. He was given no warning and was not told of the case
against him. Ridge applied for judicial review of the decision to dismiss him on grounds of
procedural unfairness.
The House of Lords held that the outcome of the decision was of special importance in
this case, since Ridge stood to lose (or ‘forfeit’) his pension rights as well as his livelihood.
Consequently, he was entitled at the very least to know the case against him. The Law Lords
declared the decision to dismiss Ridge unlawful.
Legitimate expectation cases

The express promise, or existence of a regular working practice, might give rise to two
different types of legitimate expectation:
(1) procedural legitimate expectation in which a decision-maker has failed to follow a normal
procedure; and
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(2) substantive legitimate expectation where the decision-maker has led someone to believe
that he or she will receive a benefit.
Here, we will examine the first of these: procedural legitimate expectation. R v Liverpool
Corporation, ex p Liverpool Taxi Fleet Operators [1972] 2 QB 299 provides an example of a
procedural legitimate expectation case. 300 existing Liverpool taxi licence holders were given
a written assurance by Liverpool City Council that they would first be consulted if the council
decided to grant any new licences to more taxi drivers. However, the council then passed a
resolution to grant more licences without consulting existing taxi drivers, who challenged the
decision on grounds of a broken written promise.
The Court of Appeal held that it had been legitimate for the existing taxi drivers to expect
the council to honour its written undertaking. The council was not at liberty to disregard its
promise.
What if a procedural policy, such as internal guidance within a government department, has
not been published publicly and therefore the claimant has no knowledge of it? In Mandalia
v Home Secretary [2015] UKSC 59 the Supreme Court held that the public body should apply
that policy unless it had a good reason not to do so. It stated that this principle ensured that
cases would be dealt with fairly and consistently. Such a principle was related to legitimate
expectation but was ‘freestanding’.
Application cases
For an example of an application case, see McInnes v Onslow-Fane [1978] 1 WLR 1520.
McInnes made six applications to the Boxing Board of Control for a licence to manage
boxers. On each occasion his application was refused, with no oral hearing being granted
and no reasons being given. McInnes applied for judicial review on the basis that he had not
received a fair hearing.
The court found for the Boxing Board as McInnes was a mere first-time applicant. All that
natural justice therefore required of the Board was that it should act honestly and without bias.
Another example of an application case is R v Gaming Board, ex p Benaim and Khaida
[1970] 2 QB 417. Applications to magistrates for gaming licences could be made only once
potential applicants had obtained a certificate of consent from the Gaming Board. The
Board refused to grant such a certificate to Benaim and Khaida. The Board gave them an
opportunity to make representations and disclosed information that had led them to doubt
the applicants’ suitability, referring to criteria laid down by statute. Benaim and Khaida sought
judicial review of the Board’s decision.
The Court of Appeal found in favour of the Board. The Board was under a duty, even with first-
time applicants, to give applicants a sufficient indication of the objections against them to
enable them to answer those objections. However, it had done this. It had no further duty to
give reasons for its decisions.
You have a chance to consider into which of the three categories the claimant falls in the next
example exercise.
Example
George, a taxi driver licensed by Blackton District Council, has just had his licence
revoked. He has been told that this is ‘on account of your inappropriate conduct’, but has
not been given any further details or granted a hearing.
Consider whether George can make a claim for judicial review of the council’s decision.
Answer
The decision affects George’s ability to continue to work as a taxi driver, so this is a
forfeiture case. This means that George will be entitled to expect more, including the right
to an oral hearing, for the hearing to be considered fair.
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The common law right to a fair hearing in any case requires that he should have been
given notice of the case against him and an opportunity to refute any evidence brought
against him prior to any decision being taken to revoke his licence (Ridge v Baldwin
[1964] AC 40).
Does the right to a fair hearing always apply?

The ‘right to a fair hearing’ may not apply in certain situations, for example if a decision that
has been made is merely ‘preliminary’.
For example, in the case of Lewis v Heffer [1978] 1 WLR 1061, there had been a struggle for
power in the local branch of the Labour Party in Newham North-East. The struggle became
so intense that the national party intervened through the National Executive Committee,
suspending all officers and committees of the local party and taking over control itself. The
Committee gave the disputing members no opportunity to be heard before suspension. The
suspended officers sought judicial review of the decision to suspend them.
The Court of Appeal held that the officers had not yet been dismissed, merely suspended.
Since the investigation was only at a preliminary stage, and the final decision had not yet
been made, the officers did not have the right to seek judicial review.
Content of the fair hearing rule

What does the right to a fair hearing include? This depends largely on whether it is a
forfeiture, legitimate expectation or mere application case.
The case of Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR
1255 is a good example of a forfeiture case and illustrates how natural justice requires that
claimants in such cases should know the case against them and have the right to reply at
each stage of the decision-making process.
The facts of the case were as follows. Fairmount requested reasons for the receipt of a
compulsory purchase order as part of the Government’s slum clearance programme. An
inspector who later visited the site said the decision to make the CPO had been based on a
factor (defective foundations) that had not come to light prior to his visit. Fairmount therefore
sought judicial review on the ground that the decision was made before they had had a
chance to reply.
The House of Lords found for Fairmount on the ground that natural justice requires that
individuals should know the case against them and have the opportunity to respond at each
stage of the decision-making process. Viscount Dilhorne stated that it had been on account of
his belief as to the inadequacy of the foundations, along with other defects, that the inspector
ruled out rehabilitation. The inspector had attached great weight to a factor that formed no
part of the council’s case, which Fairmount had not been given notice of and with which it had
been given no opportunity of dealing.
In legitimate expectation cases, the nature of a fair hearing depends very much on the
expectation that the decision-maker created. For example, in ex p Liverpool Taxi Fleet
Operators it should have first consulted with the existing taxi drivers before issuing new
licences.
In mere application cases, McInnes v Onslow-Fane shows that as a general rule applicants
are merely entitled to have their cases heard honestly and without bias. However, in ex
p Benaim Khaida, as the refusal of the licence cast doubt on their good character, the
applicants were entitled to know the gist of the case against them.
The right to reasons

Does the right to a fair hearing include the right to receive reasons for a decision?
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As you have just seen, the right to know the case against you is a standard requirement of
a fair hearing. However, the law has not yet accepted that public authorities also have a
general duty to give reasons for their decisions. In the case R (Hasan) v Secretary of State for
Trade and Industry [2008] EWCA Civ 1311, the High Court held that the law did not recognise
a general duty to give reasons for an administrative decision. However, exceptions do exist.
One exception is when a decision is taken which, in the absence of reasons, looks ‘aberrant’
(ie completely wrong). For example, in R v Civil Service Appeal Board, ex p Cunningham
[1991] IRLR 297, Cunningham was dismissed, unfairly in his opinion, from the prison service,
whose members had no right to claim unfair dismissal. Cunningham’s only option was to
apply to the Civil Service Appeal Board for compensation. The usual award in circumstances
where, as here, dismissal was considered unfair was around £15,000, but Cunningham was
awarded only £6,500. He therefore sought judicial review of the Board’s decision to award
him such a small amount.
The Court of Appeal ruled that natural justice requires that a decision-maker should give
reasons for a decision where fairness requires that a claimant should have an effective right
to challenge a decision that looks wrong; where, in the words of Lord Donaldson MR, the
decision ‘cries out for explanation’. This inexplicably low award amounted to such a case.
In R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531, the
applicants were convicted of murder and received mandatory sentences of life imprisonment.
The Parole Board could only consider applications for a parole once the prisoner had served
a minimum period of imprisonment. This period, known as the tariff, was set by the Home
Secretary following recommendations by the trial judge. In the cases involving the appellants,
the Home Secretary decided not to follow recommendations of the trial judges and set longer
tariffs. The applicants were not consulted but they were told the tariffs they would have to
serve before a review of their sentences. The applicants claimed that the Home Secretary had
acted unlawfully by failing to give reasons for his decisions
The House of Lords expressly accepted that there is no general duty to give reasons for an
administrative decision. However, such a duty may in appropriate circumstances be implied.
In this case, the length of the tariff was of crucial importance to the prisoners. To give effect
to the fundamental considerations of procedural fairness, it was necessary to ensure, firstly,
that every life prisoner should have the opportunity to make written representations as to the
appropriate minimum period in their case and, secondly, those representations should be
informed by a full knowledge of any relevant judicial recommendations and comments. This
meant that, although the Home Secretary was not obliged to adopt the judicial view of the
tariff, if he departed from it he had to give reasons for doing so. Moreover, since the Home
Secretary’s decision was susceptible to judicial review, it would only be possible to mount an
effective attack on it if his reasoning was known.
In the case of Higher Education Funding Council, ex parte Institute of Dental Surgery [1994]
1 WLR 242, the court provided guidance on when decision-makers should give reasons. The
Higher Education Funding Council awarded research grants to institutions, according to the
quality of their research, based on the results of a research assessment exercise it conducted.
The council gave the Institute of Dental Surgery a low rating, resulting in a reduction of
£270,000 in the amount granted. The council gave no reasons as to why it had reduced the
Institute’s rating. The Institute applied for judicial review.
Sedley J confirmed that there was no general duty to give reasons, but there were classes of
case where fairness required the giving of reasons:
• where the legal subject matter is particularly important, for example, personal liberty;
• where the decision appears aberrant. The giving of reasons will then enable the recipient
to know whether the aberration is, in the legal sense, real (and so challengeable) or
apparent.
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However, as the instant case involved no more than the informed exercise of academic
judgment and there was nothing inexplicable about the decision itself, fairness did not require
the giving of reasons.
Right to an oral hearing and cross-examination of witnesses

Does the right to a fair hearing give parties the right to a full oral hearing? No, not in every
case, although, as already mentioned, a claimant in a ‘forfeiture case’ is entitled to expect far
more of a hearing for it to be considered to amount to a fair hearing, and this might include a
full oral hearing.
Every claimant, however, regardless of the category of case, is entitled to a hearing that is
fair and reasonable in all the circumstances. Authority for this point is the case of Lloyd v
McMahon [1987] AC 625.
The facts of the case were as follows. Prior to the council tax, the Government raised money
by imposing ‘rates’ (a local tax similar to council tax) on local residents. The District Auditor
(DA) twice warned Liverpool city councillors that they were in danger of missing the deadline
imposed by the Government for setting their rates. When the councillors did then miss the
deadline, the DA fined them just over £100,000. Although the DA did not offer councillors a
full oral hearing, he did provide detailed reasons for the fine and offered to consider written
appeals. The councillors nonetheless sought judicial review of the decision and lack of oral
hearing.
The House of Lords found for the DA. The councillors had been warned twice and had not
requested an oral hearing. The DA had therefore acted fairly in not offering them one, and the
councillors had not been prejudiced by not having been granted an oral hearing.
Lord Bridge stated that:
what the requirements of fairness demand … depends on the character of the
decision-making body, the kind of decision it has to make and the statutory or other
framework in which it operates.
In other words, what fairness requires will depend on the particular circumstances of each
case, but every claimant, regardless of the category of case, is entitled to a hearing that is fair
and reasonable in all the circumstances.
Another significant case regarding fairness and the cross-examination of witnesses is R v
Hull Prison Board of Visitors, ex p St Germain (No 2) [1979] 1 WLR 1401. The case arose
out of a prison riot, which took place in 1976, and the serious damage that occurred as a
consequence. The prisoners were charged with disciplinary offences under the Prison Act 1952
and were brought before the prison’s board of visitors. The prisoners subsequently argued
that they had not been given a proper opportunity to present their cases as they had not
been allowed to call witnesses. Furthermore, the board had acted on statements made during
the hearing by the governor, which were based on reports by prison officers who had not
given oral evidence.
Lane LJ accepted that, generally, there would be a discretion as to whether cross-examination
should be permitted, but if fairness in the circumstances required it, cross-examination should
be permitted. Here it was required to enable the prisoners to contest hearsay evidence.
The making of delegated legislation

The rules of natural justice do not apply where the decision-maker has a legislative rather than
a judicial function, as confirmed in the case of Bates v Lord Hailsham [1972] 1 WLR 1373.
Under s 56 of the Solicitors Act 1957, a committee was empowered to make orders (a type of
delegated legislation) relating to the payment of solicitors. Using these powers, the committee
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published a draft order bringing in changes to the way solicitors were paid for conveyancing
work. On behalf of the committee and as required by s 56 of the Solicitors Act 1957, Lord
Hailsham, the Lord Chancellor, sent a draft of the order to the Law Society allowing a month’s
consultation period before the proposal would be finalised. The Law Society published the
proposal in the Law Society Gazette.
Bates was a solicitor who was also a member of the British Legal Association (BLA). The BLA
asked Lord Hailsham, the Lord Chancellor, to extend the one-month consultation period to
three months. Lord Hailsham refused the BLA’s request. Bates sought judicial review of the
refusal to extend the consultation period and sought an injunction against the proposed order
becoming finalised.
The court found for Lord Hailsham on the grounds that the committee’s function was legislative
rather than judicial, and so the rules of natural justice did not apply.
The reason why the rules of natural justice do not apply to legislative functions is that
delegated legislation usually affects the public or a section of the public as a whole, rather
than having a separate effect on each individual’s rights. Fairness could not require that each
member of the public should be heard before legislation is made.
6.8 Procedural ultra vires

6.8.1 ‘Mandatory’ or ‘directory’ requirements
Having considered the common law procedural requirements placed upon decision-makers
by the rules of natural justice, we now turn to the statutory procedural requirements sometimes
placed upon decision-makers by the wording of the ‘enabling’ Acts of Parliament that give
them their powers.
Such statutory procedural requirements have historically been classified as being either
‘mandatory’ or ‘directory’. The distinction is important, because failure to comply with a
mandatory requirement rendered the decision invalid on grounds of procedural ultra vires, but
failure to comply with a directory requirement did not.
Bradbury v London Borough of Enfield [1967] 1 WLR 1311 provides an example of a
mandatory procedural requirement. Section 13 of the Education Act 1944 required local
education authorities to give notice to the public if they closed down existing schools, opened
new schools, or changed the nature of a school. The borough had failed to provide the
required notice to the public when it carried out a major reform of local schools. It tried to
justify its failure to give notice on the grounds that, had it done so, educational chaos would
have ensued. Eight ratepayers nonetheless sought judicial review of the borough’s failure to
provide notice.
The Court of Appeal found in favour of the eight ratepayers. In other words, the Court
considered non-compliance with s 13 in this case to have been a breach of a mandatory
requirement, rather than a breach of a merely directory requirement.
Conversely, the case of Coney v Choyce [1975] 1 All ER 979 provides an example of a
directory procedural requirement. There, the North Nottinghamshire Local Education Authority
announced plans for two Roman Catholic schools to become comprehensive schools.
Section 13(3) of the 1944 Act specifically required that notice should be given to the public
in a local newspaper, in some conspicuous places, and at or near the main entrance of the
school concerned. The Authority did comply with the first two notice requirements but not with
the third.
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The changes meant that parents of pupils over 13 years of age might have to travel much
further to deliver their children to school. Three hundred parents therefore petitioned the
Secretary of State for Education against the planned changes, but the changes went ahead
regardless. The parents therefore sought judicial review of the Authority’s failure to comply in
full with the notice requirements.
The court found in favour of the Authority. In other words, the court considered non-compliance
with s 13 in this case to have been breach of a merely directory requirement, rather than
breach of a mandatory requirement.
How does the court decide whether a procedural requirement is mandatory or directory?
One of the factors the court will take into account is the wording of the statute itself. However,
given that both of the above cases turned on the same section of the Education Act, this is
clearly not the only factor they consider.
A closer inspection of any distinguishing facts between the two cases illustrates what other
factors the courts take into account.
In Bradbury, the London Borough of Enfield had failed to give any notice at all. It had made
no effort to comply with any of the notice requirements contained in s 13. The Court of
Appeal decided that the borough had thereby substantially prejudiced claimants, who were
significantly affected by the major reforms. The Court found that the requirements of the Act
were an important procedural safeguard for those likely to be affected by the school closures.
By contrast, in Coney the North Nottinghamshire Local Education Authority had placed notices
both in the local newspaper and in some conspicuous places. It had even placed notices
around the schools, but had simply not done so at or near the main entrances. The court
decided the Authority had not thereby substantially prejudiced claimants, who, the court felt,
had every prospect of seeing one of the many notices, despite their absence from the school
entrances.
A comparison of these two cases, then, shows that whether or not a claimant is substantially
prejudiced by non-compliance with an important procedural safeguard is a factor for the
courts to take into account in determining whether a statutory requirement is mandatory or
merely directory.
6.8.2 Subsequent developments

In R v Soneji [2006] 1 AC 340, Lord Steyn suggested that, rather than trying to make a rigid
distinction between mandatory and directory requirements, courts should instead consider the
consequences of non-compliance with a statutory procedure. Lord Steyn held that the correct
procedure for the court to adopt was to put itself in the position of those who had enacted
the legislation –would Parliament have intended the consequence of non-compliance with the
relevant statutory requirement to be the invalidity of the decision that had been taken?
In the same case, Lord Carswell suggested that the distinction between mandatory and
directory requirements remained a useful starting point, but ultimately the question for the
court was whether it had been the intention of Parliament that failure to comply with the
procedural requirement would render the decision unlawful.
6.9 Legitimate expectations

As you have seen (at 6.7.1.4), an express promise or existence of a regular working practice
may give rise to two different types of legitimate expectation: procedural and substantive.
Having already considered procedural legitimate expectation, we will concentrate here on
substantive legitimate expectation.
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A substantive legitimate expectation may occur where the decision-maker has led someone
to believe that they will receive a benefit. The leading case in this area is R v North and East
Devon Health Authority, ex p Coughlan [2001] QB 213. The claimant, having been injured in
a road accident, was severely disabled. She consented to be moved to a new care facility,
Mardon House, on the basis that she had been assured by the health authority that this would
be her home for life. However, a few years later, the authority decided to close Mardon House
on the basis that it was too expensive to run. Lord Woolf LCJ analysed the court’s role when
dealing with legitimate expectation cases. He stated that there are at least three possible
outcomes:
(a) The court may decide that the public authority is only required to bear in mind its previous
policy or other representation. It must give this the weight it thinks right, but no more,
before deciding whether to change course. Here the court is confined to reviewing the
decision on Wednesbury, that is irrationality, grounds. It will only be in exceptional cases
that irrationality will be found. An example where the decision-maker was found to be
irrational was R v IRC, ex p Unilever plc [1996] STC 681. The company claimed for loss
relief, a type of tax allowance. In this case the loss relief that the company claimed was
technically time-barred as the company applied for the relief after the official deadline.
However, the Inland Revenue had always accepted such claims by the company in the
past. The court held that, on the basis of the Revenue’s past practice, refusal to grant the
relief would be irrational.
(b) The court may decide that the promise or practice induces a legitimate expectation of,
for example, being consulted before a particular decision is taken. This is the ‘procedural
legitimate expectation’, which you considered at 6.7.1.4.
(c) The court may decide that the promise or practice has induced a legitimate expectation
of a substantive benefit and that to frustrate the expectation is so unfair that it would
amount to an abuse of power. In these cases, the court will have the task of weighing the
requirements of fairness to the individual against any overriding public interest relied on
by the public body for its change of policy.
Mrs Coughlan’s case fell into the third category. She had received both oral and written
assurances from the health authority that she could live at Mardon House for as long as
she chose to do so. She had interpreted this to mean for the remainder of her life. The court
had to consider the ‘compelling reasons’ put forward by the health authority for closure of
Mrs Coughlan’s home, ie that Mardon House had become ‘a prohibitively expensive white
elephant’. The court decided that Mrs Coughlan did have a substantive legitimate expectation
to remain in Mardon House for the remainder of her life. This expectation had arisen in her
mind as a result of words and actions of the local authority, which had not properly weighed
all the considerations before making its decision. There was no overriding public interest to
justify the breach of her legitimate expectation. The decision to close Mardon House was
therefore quashed.
The danger exists that in requiring a decision-maker to honour a substantive legitimate
expectation, the courts are usurping the role of the decision-maker. However, in R (Niazi) v
Secretary of State for the Home Department [2008] EWCA Civ 755, Laws LJ stressed that a
substantive legitimate expectation (Lord Woolf’s third category) would only arise where the
public body concerned had made a specific undertaking, directed at a particular individual
or group, that the relevant policy would be continued. Such undertakings are likely to be
directed at a small class of people. Laws LJ stressed that the type of legitimate expectation
found in Coughlan was likely to be exceptional. Public bodies will not normally be legally
bound to maintain a policy that they have reasonably decided to change. In addition, the
consequences of requiring the authority to keep to its promise in Coughlan were financial
only –and as the group of people was small, the impact on public finances would not be
severe.
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Legitimate expectation is rather difficult to classify under the traditional judicial review
grounds, and it would appear to span all three of Lord Diplock’s ‘domestic’ grounds in the
CCSU case. In the first of Lord Woolf’s categories, a claimant’s ground of challenge would
appear to be irrationality, in the second procedural impropriety, and in the third ‘abuse of
power’, a type of illegality. Some academics argue that legitimate expectation constitutes a
new ground of review. However, so far the courts seem to have squeezed it into the traditional
categories.
Summary
By studying this chapter, you should have gained an understanding of what judicial review
can achieve, how a claim can be established by reference to grounds of challenge, and
an understanding of the difference between substantive and procedural grounds. This will
provide a basis for you to go on in the next chapter to explore in detail how a claim for
judicial review is made.
• Illegality is a ground for challenge. The main categories of illegality are:
∘ Acting without legal authority (ultra vires): The decision-maker exceeds the powers
given by statute (ex p McCarthy and Stone).
∘ Error of law: the decision-maker misunderstands its powers (Anisminic).
∘ Jurisdictional error of fact: the decision-maker makes a mistake as to a fact that
must be in place to trigger the use of the power (ex p Khawaja [1984] AC 74).
∘ Policy: a decision-maker is allowed to formulate a policy on which to base decisions
for the purpose of administrative expediency (British Oxygen) but it must properly
reflect the statutory powers given to the decision-maker.
∘ Fettering discretion by applying a policy too rigidly: a decision-maker must not
close its ears to an applicant who has something new to say (British Oxygen).
∘ Fettering discretion by acting under the dictation of another: a decision-maker
must not allow another person to make the decision for it (Lavender & Son).
∘ Improper or unauthorised purpose:: the decision-maker must use its powers for the
correct purpose (ILEA).
∘ Dual purpose: the decision-maker should not use its powers to cover two or more
different purposes, if one or more of those purposes was unlawful and materially
influenced the decision. If, on the other hand, the authorised purpose was the
dominant purpose, then the decision will stand (ILEA).
∘ Considerations: a decision-maker must not take irrelevant considerations into account
when making its decision and must not ignore relevant considerations (Roberts v
Hopwood; Padfield).
• Irrationality is a ground for challenge where a decision is ‘so unreasonable’ that ‘no
reasonable authority could ever have come to it’ (Associated Provincial Picture Houses
v Wednesbury Corporation) or ‘so outrageous’ in its defiance of logic that ‘no sensible
person’ could have reached it (CCSU). Whilst the threshold for irrationality is high, cases
such as Wheeler v Leicester City Council show it can be reached.
• Procedural impropriety is a ground for challenge based on the way in which a decision
has been reached (‘procedure’). Figure 6.3 illustrates the categories of procedural
impropriety.
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Figure 6.3 Procedural impropriety
Procedural impropriety
Procedural fairness/Natural justice Procedural ultra vires
Right to a fair hearing Rule against bias
• The two common law rules of procedural fairness, or natural justice, are:
∘ The right to fair hearing: the rules of natural justice demand that a hearing should
be fair in all the circumstances (Ridge v Baldwin), although what constitutes a fair
hearing depends on factors such as the nature of the interest of a party adversely
affected by a decision (McInnes v Onslow-Fane).
∘ The rule against bias: an individual has the right to a fair and independent tribunal,
so they can challenge decisions where the decision-maker is biased or appears to be
biased. There are two categories of bias:
— Direct interest: the decision-maker should not judge in their own cause. If they
receive a pecuniary advantage as result of their decision, it will automatically be
void (Dimes v Grand Junction Canal Co.). The same principle applies if they have
a shared commitment or belief with one of the parties in the case (ex p Pinochet
Ugarte (No 2)).
— Indirect interest: the test is whether a fair-minded and informed observer would
conclude that there was a real possibility of bias (Porter v Magill).
• The final category of procedural impropriety is:
∘ Breach of statutory procedural requirements, or procedural ultra vires: according to
R v Soneji, whether a procedure set within a statute should be followed depends on
Parliament’s intention in the face of its breach.
• A legitimate expectation, either procedural or substantive, can arise as a result of a
promise made by a decision-maker. The promise should be honoured unless public
interest prevails (ex p Coughlan).
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Sample questions
Question 1
Assume that a statute (fictitious) gives local authorities the power to grant licences to
cinemas in their area ‘on such conditions as they think fit’. Exercising this power, a local
authority grants a company a licence on condition that no film should be shown at its
cinemas unless approval is first obtained from the local Churches Committee. The company
objects to this condition.
Which of the following best describes whether the company can successfully seek
judicial review of this licence condition?
A The decision is lawful as the licensing authority had effectively delegated its decision-
making power to another body, the local Churches Committee and the delegation
cannot be challenged.
B The decision is lawful because the delegation was made to a local committee and the
statutory exception relating to local bodies applies.
C There is illegality as the delegation to a religious body (the local Churches Committee)
was in breach of the rule against delegation.
D There is illegality as the licensing authority had delegated its decision-making power
to another body, which was neither a civil servant nor a local authority committee or
officer.
E There is illegality as the licensing authority, by delegating its decision-making power to
another body, was pursuing an unreasonable purpose.
Answer
Option D is correct. The facts are similar to that of Vine v National Dock Labour Board.
The licensing authority had delegated its powers in breach of the rule against delegation
and neither the civil servant nor local authority committee exemption applied because the
decision was delegated to a local Churches Committee. Option D is a better answer than
option C as the reason the rule against delegation was breached had nothing to do with
the nature of the Churches Committee. Option D is also a better answer than option E; on
the facts the licensing authority’s purpose is not known, but in any event even if its purpose
had been legitimate it would have breached the rule against delegation.
Option A is wrong, as there is a clear breach of the rule against delegation. Option B is
wrong as the statutory exception it refers to applies only to committees, sub-committees and
officers of local authorities, not to local bodies in general.
Question 2
Assume that a statute (fictitious) gives power to the Secretary of State to assess claims
for property damage arising out of terrorist bomb attacks and to award financial
compensation based on the damage suffered. The Act permits a maximum award of
£100,000 to be made.
A charity that provides temporary accommodation for the homeless had its premises
destroyed in a bomb attack. It applied to the Secretary of State for compensation of
£100,000 to go towards the cost of rebuilding, estimated at £150,000. It was awarded
compensation of only £5,000. No reasons were given by the Secretary of State for the size
of the award. Before applying for compensation, the charity consulted the Secretary of
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State’s department and was sent a copy of a departmental circular, which states ‘when
awarding compensation, a full award will normally be given to charitable organisations
providing care for disadvantaged groups’.
Which of the following best describes the grounds on which the charity should seek
judicial review of the amount of the award?
A The charity’s claim is likely to fail as it is a mere applicant and the Secretary of
State’s only duty is to act honestly and without bias. On the facts provided, there is no
evidence of dishonesty or bias.
B The charity’s claim is likely to fail. The Secretary of State is under no duty to give
reasons and, in the absence of reasons, the charity cannot prove the Secretary of State
has acted illegally or irrationally.
C The charity’s claim is likely to succeed. By failing to award £100,000 compensation, the
Secretary of State has breached a mandatory procedural requirement.
D The charity’s claim is likely to succeed. The statement in the circular is likely to create a
substantive legitimate expectation that its application will be successful and it will be
an abuse of power to frustrate that expectation.
E The charity’s claim is likely to succeed. In the absence of reasons, the decision is likely
to be held to be irrational.
Answer
Option E is correct. The charity will most likely be able to bring a claim based on irrationality.
Whilst there may also be procedural impropriety, neither option C nor option D correctly
summarises the position.
The charity is entitled to a fair hearing. On the face of it, it is a first-time applicant for
compensation (McInnes v Onslow-Fane), which may impact on what is expected of the
decision-maker in order to achieve fairness. However, the charity will argue that the statement
in the circular has created a substantive legitimate expectation that its application will be
successful.
It is then necessary to analyse whether this case falls within the first or third of Lord Woolf’s
categories in Coughlan. It is likely to fall within the first category as it involves the payment
of money rather than a basic need such as healthcare. The charity would therefore have to
rely on irrationality. As no reasons have been given for reducing the award of compensation
from £100,000 to £5,000, the charity has a strong argument that the Wednesbury threshold
of irrationality has been reached. Option E is therefore correct and a better answer than
option D. Option B is also clearly wrong as the absence of reasons is likely to lead to a
finding of irrationality.
Although there is no general requirement for ministers to give reasons for their decisions,
the courts may require this if the decision appears wrong. Here, they may require reasons
to enable the charity to ascertain whether the minister took all relevant circumstances into
account in reaching his decision (ex p Cunningham). In this case, the size of the award may
appear unjustifiably low, and if so, the decision could be quashed for the failure to give
reasons. However, this duty arises from the common law rules of procedural fairness, and do
not arise from statute; hence option C is wrong. Option A is wrong as the circular has created
a legitimate expectation that the charity will receive a full grant.
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Question 3
Assume that a statute (fictitious) gives local authorities the power to order the closure of
market stalls in a public market if the trader has repeatedly sold goods that are not of
a satisfactory quality. The statute provides that the operator of any stall that is to be the
subject of a closure order shall be given seven days’ notice of the order, and shall also
be given the right to make representations against the closure. Using its power, the local
authority has sent a notice to a trader ordering the closure of his stall after seven days.
The local authority has stated that due to the poor quality of the goods the trader sells,
there is no point in him making representations.
Which of the following best describes whether the trader could seek judicial review of
the closure notice?
A The trader’s claim is likely to fail. Due to the seriousness of the matter, the local
authority was entitled to dispense with the requirement to allow the trader to make
representations.
B The trader’s claim is likely to fail. The requirement to allow the trader to make
representations is merely a guidance as to good practice and its breach does not
render the closure notice invalid.
C The trader’s claim is likely to fail. The requirement to allow the trader to make
representations is merely a directory procedural requirement and its breach does not
render the closure notice invalid.
D The trader’s claim is likely to succeed. The requirement to allow the trader to make
representations is a mandatory procedural requirement as Parliament probably
intended its breach to invalidate the closure notice.
E The trader’s claim is likely to succeed. The local authority has acted without legal
authority in ordering the closure of the stall without allowing the trader to make
representations.
Answer
Option D is correct. The issue is whether the local authority has failed to comply with a
mandatory procedural requirement or a directory one. Non-compliance with the former
renders a decision invalid on grounds of procedural ultra vires, whereas failure to comply
with a directory requirement does not. An important factor that the court will take into account
is the wording of the statute itself. According to the facts, the statute provides that local
authorities ‘shall’ allow operators of stalls to make representations; this points towards a
mandatory obligation to consult. However, the language used is not conclusive.
Case law also shows that where a claimant is substantially prejudiced by non-compliance
with an important procedural safeguard, the courts are likely to rule a statutory requirement is
mandatory. Another question is whether Parliament would have intended the consequence of
non-compliance with the relevant statutory requirement to be the invalidity of the decision. This
seems likely, as closure of the stall will deprive the trader of his livelihood. Accordingly, options
C and B are wrong for suggesting the requirement is merely directory or guidance as to good
practice respectively.
Option A is wrong as, in the absence of statutory authority, the seriousness of the matter does
not dispense with the need to observe procedural requirements.
Option E is wrong as the local authority did have the legal authority to order the closure of
the stall, provided it followed the correct procedure. Acting without legal authority (one of the
headings under illegality) arises when a decision-maker does not have the power at all to
take a given decision, no matter how properly it tried to act.
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7 Judicial Review –Procedure
and Remedies
7.1 Introduction to procedure and remedies 132
7.2 Is judicial review the appropriate procedure to use? 133
7.3 Identity of the decision-maker 135
7.4. Standing in claims for judicial review 136
7.5 Making a claim for judicial review 137
7.6 Exclusion of the courts’ judicial review jurisdiction 139
7.7 Procedure for bringing a judicial review claim 141
7.8 Remedies in judicial review 142
SQE1 syllabus
to functioning legal knowledge concerned with core administrative law principles,
including:
• judicial review:
∘ remedies;
∘ decisions that may be challenged;
∘ standing; and
∘ time limits.
Note that for SQE1, candidates are not usually required to recall specific case names or
cite statutory or regulatory authorities. Cases are provided for illustrative purposes only.
Learning outcomes
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas, including the ability to:
• explain the principle of ‘procedural exclusivity’;
• assess whether a decision-maker is one against whom judicial review claims may
be brought;
• assess whether the claimant is likely to be deemed to have sufficient interest to
bring a judicial review claim;
• assess whether attempts by Parliament to oust the judiciary from participating in
a judicial review claim are likely to succeed;
• assess whether a court is likely to permit a judicial claim which is brought neither
promptly nor without undue delay; and
• consider what remedies a successful claimant is likely to be granted.
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7.1 Introduction to procedure and remedies

Judicial review procedure is governed by primary legislation (s 31 of the Senior Courts Act
1981) and by rules of court contained in Part 54 of the Civil Procedure Rules (CPR). In this
chapter, you will study the procedure required to obtain judicial review and the remedies
available.
Set out in Figure 7.1 is the overview diagram, to which you were introduced in Chapter 6. As
before, the topics you are studying are in boxes highlighted in bold.
Figure 7.1 Judicial review: an overview
1. Can the claimant (‘C’) make a

claim for judicial review?
Does C’s claim ‘Sufficient Within time? Ouster provisions?

raise public law interest’?
issues? Appeal?
Is defendant
amenable to
judicial review?
2. If so, what are C’s likely

grounds of challenge?
Apply (where relevant)

Lord Diplock’s grounds in CCSU:

IMPROPRIETY
3. Procedure
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Judicial Review – Procedure and Remedies
7.2 Is judicial review the appropriate procedure to use?

The example exercise that follows will highlight for you the issues that you will address in
detail in this section.
Example
Consider which of the following claims you would expect to be brought by way of judicial
review proceedings:
1. A private care home has told an elderly woman that it is terminating her care
contract and will remove her from the home. She wishes to challenge the decision.
2. Your client has been given negligent advice by a council planning officer, leading
him to spend money on a planning application that has failed. He wishes to recover
compensation.
3. You act for an electricity company that has been told that the Government is revising
its national power strategy in favour of nuclear power sources. The company feels
that it was not properly consulted.
Answer
Only claim 3 would be brought via judicial review proceedings, as it involves a challenge
to a public body (the Government) on public law grounds (fair hearing).
Claim 1 involves a challenge to a private body (the care home) on private law grounds
(breach of contract).
Claim 2 involves a claim against a public body (the local authority) but on private law
grounds (claim in tort for negligent misstatement).
7.2.1 Public law v private law –the principle of ‘procedural exclusivity’

We first need to consider when judicial review is the appropriate procedure to use.
The principle of procedural exclusivity requires that, in a ‘public law case’, the judicial review
procedure should normally be followed, rather than the ordinary private law procedure.
In O’Reilly v Mackman [1983] 2 AC 2370, the claimants were four prisoners who were charged
with, and found guilty of, disciplinary offences by the board of visitors to the prison. They were
seeking a declaration that the disciplinary decisions affecting them were void, but by means
of a private law action rather than via an application for judicial review.
In his speech Lord Diplock said that the claimants were not complaining about a breach of
their private rights because their private right to personal liberty had been taken away by
the sentence of the court. They were complaining that they should be entitled to remission of
sentence, but this was a matter of discretion rather than right.
Lord Diplock said that the prisoners had a legitimate expectation, based on past practice,
that good behaviour would earn remission. This gave them a sufficient interest to challenge
the board’s decision, using public law grounds of challenge. So they could have brought a
judicial review claim.
The House of Lords found for the board of visitors as the claimants had brought the wrong
type of claim. The Law Lords stated that it would, as a general rule, be contrary to public
policy and an abuse of process of court to allow a claimant to seek to enforce public law
rights by way of an ordinary action rather than by judicial review.
Lord Diplock gave the following reasons for using judicial review:
(a) By using private law procedures the claimants were ‘evading the safeguards’ imposed
in the public interest against ‘groundless, unmeritorious or tardy’ attacks on the validity
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of decisions (eg the permission and delay rules that affect an application for judicial
review – see 7.5 below).
(b) The judicial review procedure had been reformed in 1978 to remove the defects of the old
procedures.
7.2.2 Cases involving both a public law and a private law element
An exception to the ‘procedural exclusivity’ principle is where a case involves both private and
public law.
This was so in Roy v Kensington Family Practitioner Committee [1992] AC 624. Dr Roy, a GP,
argued that he was entitled, under NHS regulations, to be paid the ‘full rate’ on the fee scale
provided by the Kensington Family Practitioner Committee. Such a rate was available to any
GP where the Committee was satisfied that he or she was devoting a substantial amount of
his or her time to general practice.
The Committee believed that Dr Roy did not satisfy this criterion and so paid him 20% less
than the ‘full rate’. This was a public law decision, challengeable via judicial review. Dr Roy
sued the Committee for the balance, alleging breach of contract and pursuing ordinary
private law procedure. The Committee argued that he should have sought judicial review and
that his private law claim should therefore be dismissed.
The House of Lords found that where a claim is based on a mixture of private rights and
public law grounds, the public law element may be raised in private law proceedings.
However, it remains the case that exclusively public law issues must be determined in judicial
review proceedings, and exclusively private law issues must be determined in ordinary private
law proceedings.
Examples of the most common types of public law cases include challenges to the making
of a compulsory purchase order over land, challenges to the grant (or refusal) of a licence
permitting a particular type of activity to be carried out, and challenges to the refusal of
discretionary financial grants.
A public law issue may also be raised as a defence in private law proceedings, through the
principle of ‘collateral challenge’, as illustrated in the cases of Wandsworth London Borough
Council v Winder [1985] AC 461 and Boddington v British Transport Police [1998] 2 WLR 639.
In Wandsworth v Winder the Council had increased council rents substantially and sued a
council tenant who had refused to pay the increase. The defendant claimed, as a public law
defence, that the increase in rent was ultra vires. The Council argued that he should have used
judicial review.
The House of Lords confirmed that a defence alleging the invalidity of a public law decision
may be raised either in private law proceedings or through judicial review. In this case, the
public law issue is said to arise ‘collaterally’ in the private law proceedings.
In Boddington the House of Lords extended the concept of collateral challenge to criminal
cases. Mr Boddington had been prosecuted for smoking on a train in breach of a byelaw.
His defence was that the byelaw itself was unlawful. Although he failed to establish this, the
House of Lords found that a defendant to a criminal charge may normally use a public law
issue as a defence.
The next example exercise will enable you to consolidate your understanding of this area.
Example
(a) Aruna is a self-employed accountant who provided some accountancy services to the
Constantia District Council. The Council has refused to pay her bill, arguing that it is
too high.
How should Aruna proceed?
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(b) A group of protesters is being sued for trespassing on common land in contravention
of a local authority byelaw. The protesters claim that the byelaw is ultra vires and
therefore that they were not trespassing.
Will the protesters be able to assert their claim that the byelaw is ultra vires as a
defence against the claim for trespass?
Would your answer differ if the protesters were instead being privately prosecuted for
criminal trespass?
Answer
This activity aims to demonstrate the principle of procedural exclusivity (O’Reilly v
Mackman). Here, Aruna has a private law (contractual) relationship with the Constantia
District Council.
She needs to proceed by way of a private law claim for damages, not by way of judicial
review.
By way of exception to the general principle in O’Reilly v Mackman, the protesters should
be able to challenge the validity of the byelaw as part of their defence to what appears
to be a civil claim for trespass (rather than a criminal prosecution) as they are raising a
public law defence to private law proceedings (Wandsworth LBC v Winder).
If the protesters were defending a private prosecution for criminal trespass, they could
still raise the invalidity of the byelaw as a defence, but the appropriate authority for this is
Boddington v British Transport Police.
7.3 Identity of the decision-maker

Claimants can seek judicial review only of decisions made by public bodies. Decisions of
private bodies must be challenged under private law proceedings.
Lloyd LJ established a two-part test to determine what constitutes a public body in the case of
R v Panel on Takeovers, ex p Datafin plc [1987] QB 815.
The first part of the test is the source of power test. Under this, if the body making a decision
has been set up under statute or under delegated legislation, or derives its power under a
reviewable prerogative power, then it is a public body.
If this part of the test is not satisfied then the court goes on to apply the second part, the
nature of power test. Under this, if the body making the decision is exercising public law
functions, it may still be a public body.
The next example exercise will enable you to check your understanding of this area.
Example
Under the Advertising Regulation Act 2017 (fictitious) the Advertising Conduct Commission
(ACC) is established to regulate the advertising industry. Under the Act, a business
wanting to set up a new advertising agency must obtain a licence from the ACC.
Is the ACC amenable to judicial review?
Answer
The ACC was created by statute, namely, the Advertising Regulation Act 2017. It therefore
satisfies the first element of the two-part test, ie the source of power test, established in
R v Panel on Takeovers, ex p Datafin plc. Consequently, it is a public rather than a private
body and, as such, is amenable to judicial review.
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7.4. Standing in claims for judicial review

7.4.1 The requirement of ‘sufficient interest’
The courts will deem a claimant to have standing to bring a judicial review claim only if he
has ‘sufficient interest in the matter to which a claim relates’, as required by s 31(3) of the
Senior Courts Act 1981. This will not present a problem if a claimant is personally affected by
a decision, but may be an issue if the claimant has no personal interest. The leading case on
this issue is R v Inland Revenue Commissioners, ex p The National Federation of Self-Employed
and Small Businesses Ltd [1982] AC 617. For many years casual workers employed by Fleet
Street newspapers had avoided paying tax by using false names. The Inland Revenue granted
them an amnesty and agreed not to pursue the workers for arrears of tax provided they paid
tax in the future. The National Federation of Self-Employed and Small Businesses applied for
judicial review of this arrangement, claiming that it was unlawful. The Revenue argued that the
Federation lacked sufficient interest to have standing.
As explained at 7.7 below, judicial review is a two-stage process. The House of Lords
explained that the purpose of the first stage, the permission stage, was to weed out weak
and frivolous claims. It was therefore correct at this stage to hold that the Federation did have
standing, as its claim was not obviously unmeritorious. However, the issue of standing could
not be separated from the merits of the case. At the second stage, the substantive hearing
where the facts and legal issues would be considered in depth, the court should re-examine
the claimant’s standing with regard to the merits of the claim and the claimant’s relationship
to the merits. As the Federation had been unable to prove any wrongdoing on the part of the
Revenue, it did not have sufficient interest because in general one taxpayer has no legitimate
interest in the affairs of another.
However, if the Federation had shown serious wrongdoing on the part of the Revenue, then
it is likely that it would have been granted standing. Accordingly, the question of standing is
closely linked to the merits of the case; the courts are unlikely to reject a valid judicial review
claim simply on the grounds of a lack of standing.
Although the Federation failed to establish the requisite standing, it is clear from the judgment
that in principle pressure groups may in the right circumstances have standing, and even
perhaps a single ‘public-spirited individual’. So, when will pressure groups have standing to
bring a judicial review claim?
7.4.2 Pressure groups and judicial review proceedings

The case of R v Secretary of State for Foreign Affairs, ex p World Development Movement
Limited [1994] EWHC Admin 1 provided guidance on the factors that courts take into account
when deciding whether a pressure group has sufficient interest to bring a claim for judicial
review.
In the early 1990s, the Foreign Secretary granted aid to Malaysia towards the building of
a hydro-electric power station at the Pergau Dam. He granted the aid under s 1(1) of the
Overseas Development and Co-operation Act 1980, which required that any donations were
‘for the purposes of promoting the development or maintaining the economy of a country’.
The World Development Movement Ltd (WDM) was a pressure group, which argued that the
Foreign Secretary had known that the Pergau Dam project was economically unsound, and
that money was really a payment for the supply of arms by the UK to Malaysia.
The WDM sought judicial review of the granting of the aid. The Foreign Secretary argued that
WDM, as a pressure group, lacked standing to seek judicial review.
The Divisional Court found for WDM, and set out the five relevant factors a court should
consider in deciding whether a pressure group has standing to bring a judicial review claim.
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The five factors are:

1. the need to uphold the rule of law;
2. the importance of the issue raised;
3. the likely absence of any other responsible challenger;
4. the nature of the alleged breach of duty; and
5. the role of the pressure group.
The court emphasised the fifth factor as being particularly relevant to pressure groups,
pointing out WDM’s expertise and prominence in promoting and protecting aid to developing
nations.
Sometimes a number of people who are personally affected by a decision may form a
grouping to oppose that decision (for example, a group of local residents who join together
to oppose the building of a nuclear power station in their area). Such a grouping would not
ordinarily need to satisfy the factors set out in ex p World Development since each individual
member of the group would be personally affected by the decision, and would therefore have
sufficient standing under s 31(3).
The next example exercise will enable you to apply the requirement that a claimant has
‘sufficient interest’ to be entitled to bring judicial review proceedings.
Example
You will recall from the previous example that, under the Advertising Regulation Act
2017 (fictitious) (as above), a business wanting to set up a new advertising agency must
obtain a licence from the ACC. The ACC has granted a licence to Abstotic Marketing Ltd
(‘Abstotic’).
The UK Consumer Forum (‘the Forum’), a well-known pressure group that campaigns for
better standards in the advertising industry, objects to the grant of the licence as one of
Abstotic’s major shareholders and its chief executive have both recently been convicted
and fined substantially under legislation prohibiting misleading advertisements.
Does the Forum have standing to bring a judicial review claim?
Answer
The courts will deem a claimant to have sufficient standing to bring a judicial review claim
only if they have ‘sufficient interest in the matter to which a claim relates’, as required by s
31(3) of the Senior Courts Act 1981.
The statute contains no definition of ‘sufficient interest’. Instead the courts apply factors
developed through case law. In the Forum’s case, the courts will apply the five factors
set out ex p World Development. On the basis of these factors the courts are likely to
consider that the Forum has ‘sufficient interest’ in the decision to grant Abstotic a licence
to apply for judicial review.
7.5 Making a claim for judicial review

7.5.1 The Administrative Court
Judicial review is dealt with by the Administrative Court, a specialist court within the
High Court.
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7.5.2 Time limits

7.5.2.1 What is the rule?
Claimants seeking judicial review must start their claims within the given time limits.
Section 31(6) of the Senior Courts Act 1981 allows a court to refuse a claim where it feels
there has been ‘undue delay’. In addition, CPR, r 54.5 requires that a claim form must be filed
promptly, and in any case within a maximum of three months after the ground to make the
claim first arose. With effect from 1 July 2013, amendments to r 54.5 reduced the standard
time limit for cases within the ‘planning acts’ to six weeks from the date of the decision. The
‘planning acts’ are defined within s 336 of the Town and Country Planning Act 1990, and this
reduced time limit will only apply to planning decisions that come within this definition. The
2013 amendments also reduced the time limit for public procurement cases (ie those where a
public authority acquires supplies or services) to 30 days.
Rule 54.5(3) emphasises that the time limits in the rule are without prejudice to any statutory
provision that shortens the time limit for making a claim for judicial review, a point we shall re-
visit when considering ouster clauses in 7.6 below.
It is important to appreciate that this is far from saying that every claimant will have the full
standard time limit to bring a claim. Three months is the maximum time a court will allow; less
in planning and public procurement cases. In Finn-Kelcey v Milton Keynes Borough Council
and MK Windfarm Ltd [2008] EWCA Civ 1067, the appellant appealed against the refusal by
the Administrative Court to grant him permission to apply for judicial review of the grant of
planning permission for a wind farm. The appellant was a local landowner who objected to
the construction of the wind farm. He issued an application for judicial review just within the
three-month period under CPR, r 54.5(1) (note that this case pre-dated the reduction in time
limits for planning cases).
The appeal was dismissed. The Court of Appeal held that the appellant had been aware of
the decision of the local authority’s planning committee to grant permission as soon as that
decision had been made, and there was therefore no reason for delaying issuing proceedings
until the end of the three-month period. The application had not been made promptly.
7.5.2.2 Can the courts extend the time limit?

The courts do reserve a discretion to extend the time limit, but only for a good reason. For
example, in R v Stratford-upon-Avon DC, ex p Jackson [1985] 1 WLR 1319, the claimant applied
for leave to seek judicial review of the granting of the planning permission for a supermarket
eight months after it was granted. She gave three reasons for the delay in applying for leave
to submit her claim form. They were:
(a) she had had to await the outcome of her request to have the Secretary of State for the
Environment ‘call the matter in’ for his consideration;
(b) she had encountered difficulties in obtaining legal aid; and
(c) she had also encountered difficulties in obtaining permission from the copyright holders
for use of the plans and drawings, which she wished to use in her application for judicial
review.
The Court of Appeal allowed her an extension on the grounds that, although her application
had not been made promptly or even within three months (the time limit that then applied),
these were good reasons for the delay.
However, a court is not obliged to allow time extensions, as was seen in Hardy v
Pembrokeshire CC [2006] EWCA Civ 240. The Court stated that whilst the importance of public
safety issues is capable of justifying a grant of permission where there has been delay, it
remained for the judge to conclude whether the merits of allowing a claim outweighed the
undue delay and prejudice that would be caused by granting the permission.
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Note also that in R (Kigen) v Secretary of State for the Home Department [2015] EWCA Civ
1286 the Court stated that, due to changes that had occurred since the decision in ex p
Jackson, it was no longer appropriate to treat delay in obtaining legal aid as a complete
answer to a failure to comply with procedural requirements. However, it may still be a factor
that can be taken into account.
Finally, in R v Dairy Produce Quota Tribunal, ex p Caswell [1990] 2 All ER 434, the court stated
that, even if permission was granted and the case proceeded to a full hearing, a remedy
could be refused if the application had been made outside the three-month time limit.
The next example exercise will enable you to check your understanding of time limits in
judicial review.
Example
Under the Advertising Regulation Act 2017 (fictitious) (as above), a business wanting to
set up a new advertising agency must obtain a licence from the ACC.
Adgreen Ltd made an application to the ACC for a licence, which was rejected. At the
time of the rejection, none of the directors of Adgreen Ltd knew of the existence and
availability of judicial review. Six months later, one of the directors discovered that it was
possible to ask the High Court to review decisions by public bodies such as the ACC.
Is it too late for Adgreen Ltd now to bring a claim for judicial review?
Answer
A claimant for judicial review must make its claim promptly and without undue delay.
At the very latest, the claim must be made within three months of the date on which the
decision being challenged was made. It is entirely within the court’s discretion to decide
that a period of less than three months is insufficiently prompt.
However, the court also has a discretion to extend the maximum time period beyond three
months where it is satisfied that the claim form was submitted late for a very good reason
(ex p Jackson (above)). In the case of Adgreen Ltd, though, it is unlikely that the court
would consider ignorance of the availability of judicial review to be a very good reason.
If leave were granted, the delay might result in refusal of a remedy (R v Dairy Produce
Quota Tribunal, ex p Caswell [1990] 2 All ER 434).
7.6 Exclusion of the courts’ judicial review jurisdiction

7.6.1 Ouster clauses
A further potential pitfall for a judicial review claimant is the presence of an ouster clause in
the ‘enabling’ Act of Parliament which grants the public body the power to make decisions in
the first place.
Ouster clauses are inserted by Parliament into such Acts where it wishes to exclude any right
of challenge once a decision has been made by a public body.
7.6.2 Full ouster clauses

A full ouster clause is one which purports to allow no right of challenge at all, and which
attempts to exclude the courts from playing any role in review of the decision.
An example of a case with a full ouster clause is Anisminic v Foreign Compensation
Commission [1969] 2 AC 147, which you considered in Chapter 6. You may recall that, in this
case, the House of Lords held that the Foreign Compensation Commission had made an error
of law in deciding that a purchaser of business property amounted to a ‘successor in title’.
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The House of Lords was prepared to consider this case even though the statute that created
the FCC contained a provision stating that any decision made by the FCC ‘shall not be called
into question in any court of law’. The House of Lords stated if a public body steps outside its
permitted area, its decisions are not covered by an ouster clause because invalid decisions
are not in fact decisions at all, but ‘nullities’. Ouster clauses therefore only protect valid
decisions from judicial review.
The rationale of their Lordships in Anisminic was that, whenever a body created by statute
had misunderstood the law that regulated its decision-making powers, any decision based
on such a misunderstanding had to be ultra vires and a ‘nullity’. Parliament, in enacting the
statute that gave the body its powers, could not have intended decisions that were legally
incorrect to be immune from challenge, and therefore any ouster clause would be ineffective
in protecting such decisions.
The judgment of the House of Lords in Anisminic means that full ouster clauses will not protect
decisions that were never legally valid, and it is up to the court to review a decision to decide
whether it is legally valid or invalid.
In the recent case of R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC
22, Lord Carnwath, who gave the lead judgment, stated that the courts’ treatment of ouster
clauses was ‘a natural application of the constitutional principle of the rule of law’. The
Supreme Court accepted that it may be possible to exclude judicial review by the use of very
clear and explicit words. However, to date, no legislation has been passed containing a full
ouster clause with sufficiently ‘clear and explicit words’ to be upheld by the courts.
7.6.3 Partial ouster clauses

A partial ouster clause provides some opportunity for a decision to be challenged by way of
judicial review. The case of R v Secretary of State for the Environment, ex p Ostler [1977] QB
122 shows that the courts are more amenable to partial ousters than to full ones. In May 1974,
the Secretary of State confirmed a compulsory purchase order, or CPO, as he was authorised
to do under the Highways Act 1959, over land near Ostler’s house. The Act included a
statutory time limit of six weeks for anyone to challenge such an order. Only 19 months later,
in December 1975, did Ostler apply for judicial review of the CPO. He argued that his delay in
objecting had been due to a belief that the scheme would not affect his premises.
The clause that imposed the time limit for bringing a claim stated that an aggrieved person
had the right to challenge the validity of a compulsory purchase order within six weeks from
the date of its publication. Subject to that right, the Act further provided that that the order
‘shall not … be questioned in any legal proceedings whatever …’.
This is a partial ouster clause rather than a full ouster clause because it does allow a
challenge, but only if made within six weeks. It simply shortened the time period from that
usually allowed to bring a judicial review claim.
The Court of Appeal upheld the validity of the partial ouster clause. Ostler should have
applied to the High Court within six weeks of the date of the publication of the notice of
confirmation. The court had no jurisdiction to entertain an application made outside such time
limit, whatever the claimant’s grounds. Moreover, unlike situations where the time limits set
out in CPR, r 54.5 apply, the courts have no discretion to grant an extension even if there are
good reasons for the delay (Smith v East Elloe Rural District Council [1956] AC 736). There has
been some academic debate about whether the courts would uphold an unreasonably short
time limit, but there is no direct authority on this point.
In R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 Lord Carnwath
stated that, in the cases on ouster clauses, the courts have tried to find an appropriate
balance between the statutory context and the inferred intention of the legislature on the
one hand, and the rule of law on the other. He went on to state that ‘there is no difficulty in
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holding that the six-week time limit [in planning cases] provides a proportionate balance
between effective judicial review, and the need for certainty to enable such decisions to be
acted on with confidence’.
7.6.4 Other statutory remedies

The provision of an adequate statutory remedy for an aggrieved party, such as a right of
appeal, may impliedly oust the courts’ judicial review jurisdiction.
This can be seen in the case of R v Epping and Harlow Commissioners, ex p Goldstraw [1983]
3 All ER 257.
Goldstraw considered his estimated income tax assessments had been too high, so
he appealed under the Taxes Management Act (TMA) 1970, but failed to attend or be
represented at the hearing on 11 November 1980. The Inland Revenue Commissioners (IRC)
informed him that they had confirmed his tax assessments in his absence. The TMA 1970 gave
Goldstraw 30 days to appeal, but he did not make his appeal for almost three months. The
IRC refused to consider his appeal application, so Goldstraw sought leave of the court to
apply for judicial review.
The Court of Appeal held that where a claimant had failed to make a proper use of an
appropriate statutory procedure for obtaining a remedy, the court would not generally
exercise its discretion to allow an application for judicial review.
7.7 Procedure for bringing a judicial review claim

7.7.1 Outline of procedure
Before starting proceedings the claimant should follow the Pre-Action Protocol for Judicial
Review. This involves sending a letter before claim to the decision-maker to give the latter
14 days to reconsider its decision and, if possible, to avoid unnecessary legal proceedings. If
the decision-maker’s response satisfies the claimant, that ends the matter. If not, the claimant
should start formal proceedings. Courts will take into account any failure to follow the Protocol
when awarding costs. The claimant does not, however, have to follow it where the matter is
urgent or where a time limit of less than three months applies.
Bringing a judicial review claim is a two-stage procedure. The first stage is known as the
permission stage, the second the substantive hearing. The detailed rules regarding what the
parties must do at each stage are contained in CPR, Part 54.
7.7.2 Stage 1: the permission stage

It is at the permission stage that the court considers whether the claimant has standing and
whether the claim was begun in sufficient time. Primarily, however, the purpose of this stage is
to allow the courts to save time by weeding out hopeless claims before they reach the second
stage. Under s 31(3C) of the Senior Courts Act 1981 (inserted by the Criminal Justice and
Courts Act 2015) the court must not grant permission to apply for judicial review where the
improper conduct complained of would be highly likely not to have resulted in a substantially
different outcome for the claimant. The court may, however, disregard this requirement for
reasons of exceptional public interest.
7.7.3 Stage 2: the hearing of the claim for judicial review

The substantive hearing is before a judge in the Administrative Court. The hearing is usually
confined to arguments on points of law, as the facts will rarely be in issue. Following the
hearing, the judge will give his or her ruling.
The diagram in Figure 7.2 summarises the procedure.
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Figure 7.2 Outline of procedure for judicial review
The claimant issues a claim form in the Administrative Court
The claim form must:
• state that the claimant is requesting permission to proceed with a

claim for judicial review and the remedy/remedies sought;
• state, or be accompanied by a detailed statement of, the claimant’s

grounds for making the claim, the facts relied on and the supporting
evidence.
The claim form is ‘served’ on the defendant (and any other interested party)
Note: if the judicial review proceedings are contested, the defendant should
respond to the claim form, indicating the grounds for contesting the claim.
The court will then decide whether to grant permission to the claimant to
proceed with the claim
Permission will not be granted if the claimant cannot demonstrate a

‘sufficient interest’ in the claim; if the claimant has been guilty of unjustified
delay; or if the conduct complained of would be highly likely not to have
resulted in a substantially different outcome for the claimant.
Permission decisions will often be made ‘on the papers’ (ie without hearing
the parties).
If permission is granted, the defendant (and any other interested party) will
file its evidence. The court will now proceed to ‘Stage 2’, the substantive
hearing of the claim for which it will fix a date.
7.8 Remedies in judicial review

Judicial review remedies are discretionary, so a claimant may be able to show that a
decision-maker has acted improperly but the court may nonetheless decide not to grant a
remedy. Under s 31(2A) of the Senior Courts Act 1981 (inserted by the Criminal Justice and
Courts Act 2015) the court must refuse a remedy if it appears to the court to be highly likely
142
that the outcome to the claimant would not have been substantially different if the conduct
complained of had not occurred. The court may, however, disregard this requirement for
reasons of exceptional public interest.
7.8.1 Public law remedies –the ‘prerogative orders’

Prerogative orders are the main court orders that a judicial review claimant can seek; they
comprise:
(a) Quashing order
(b) Prohibiting order
(c) Mandatory order
Prerogative orders are available against public bodies only.
7.8.1.1 Quashing order

A quashing order ‘quashes’ a decision that the court has found to be unlawful (ie it deprives
the decision of legal effect). The original decision is thereby nullified. However, the court does
not usually substitute its own decision but remits it to the decision-maker who must reconsider
the decision in light of the court’s judgment. The decision-maker may reach the same decision
again. However, this time the decision-maker is more likely to reach a lawful decision as it will
now have the benefit of the judgment of the court.
7.8.1.2 Prohibiting order

A prohibiting order will order a public body to refrain from acting beyond its powers. Such
orders are comparatively rare as claimants often prefer to apply for injunctions (see 7.8.2.2
below). The case of R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association
(see Chapter 6) provides a good example of a prohibiting order. The council had decided to
issue new taxi licences, breaching an assurance that existing licence holders would first be
consulted. The court granted a prohibiting order preventing the council from implementing its
decision pending consultation with existing licence holders.
7.8.1.3 Mandatory order

A mandatory order is designed to enforce the performance by public bodies of the duties they
are by law required to carry out. For example, if a public body has even refused to consider
an application for a benefit or licence, a mandatory order would compel the body to consider
the application.
7.8.2 Private law remedies –the ‘non-prerogative orders’

Although prerogative orders are the main orders used in judicial review proceedings, it is also
possible to apply for the following private law remedies in judicial review proceedings.
7.8.2.1 Declaration
A declaration is a court order confirming, but not changing, the legal position or rights of
the parties. It is a non-coercive remedy so can be ignored without any legal sanctions.
Nonetheless, declarations do perform a useful function. For example, in Royal College of
Nursing v Department of Health and Social Security [1981] AC 800 a government circular
asserted that nurses could lawfully undertake part of a procedure for terminating a pregnancy
without a doctor’s supervision. The claimants applied for a declaration that the government
circular was wrong in law, as its own guidance had pointed in the opposite direction.
A quashing order would not have been appropriate as there was no act or decision that
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could be quashed; however, it was desirable in the interests of nurses and the public for the
correct legal position to be established. This was the case even though, in the absence of any
prosecutions of nurses, it was an abstract point of law. The Government in turn counterclaimed
for a declaration that its guidance was not wrong in law and in fact was granted a
declaration in those terms.
7.8.2.2 Injunction
An injunction is a court order performing essentially the same function as a prohibiting order
(see 7.8.1.2), namely, to restrain a person or body from illegal action; eg a tort or breach of
contract. One of their main benefits is that it is possible to obtain an interim, as well as a final,
injunction. Temporary injunctions, for example preventing a decision from being implemented
pending the court’s final ruling on the decision’s lawfulness, can be very useful. For example,
a court may grant an interim injunction preventing an asylum seeker’s deportation pending
judicial review of the lawfulness of the decision to deport them. This may be essential to
guarantee that the person concerned has not been deported by the time the court determines
the lawfulness of the decision.
7.8.2.3 Damages
Under s 31(4) of the Senior Courts Act 1981, the Administrative Court can award damages
on a claim for judicial review where the claimant is seeking other relief (eg a quashing
order) and damages could have been awarded in a civil claim. This means that the claimant
must have a private law cause of action (eg in tort or contract) or a claim for breach of a
Convention right (see Chapter 9). Damages cannot be awarded just because the claimant
has a ground of challenge. This was confirmed in R v Knowsley MBC, ex p Maguire (1992) 142
NLJ 1375.
In the Maguire case, the claimant was a taxi driver who had been refused a taxi licence by
his local council. He sought judicial review of this and the court found in his favour, quashing
the decision. He also sought damages, claiming he had suffered losses as a result of the
unlawful refusal of the licence. The court ruled that no damages were available.
The court found that Parliament had not intended an individual to have a private right of
action in respect of a failure by a licensing authority properly to exercise its powers under the
Act governing the granting of taxi licences. In the absence of any negligence or breach of
contract, there was therefore no right to damages.
So there is no general right in law to damages for maladministration.
The next example exercise will enable you to check your understanding of this area.
Example
A market is held each week in Porchester. Stallholders are licensed annually by Porchester
Borough Council. Stefan was awarded a licence in March. In June, following allegations
made to the Council’s trading standards department that Stefan was selling fake ‘Rolex’
watches, the Council revoked Stefan’s licence with immediate effect, without giving him
any opportunity to respond to the allegations (which he denies). Stefan says he has
incurred significant losses through being unable to trade.
Consider what remedies (if any) may be available to Stefan on a successful claim for
judicial review, and whether he would be likely to obtain damages for his losses.
Answer
Assuming Stefan makes a successful claim for judicial review (on the basis of procedural
impropriety), he would seek a quashing order. This would quash the revocation and allow
him to continue trading under the licence.
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Stefan is unlikely to obtain damages. Because of s 31(4) of the Senior Courts Act 1981,
damages are in effect available in a claim for judicial review only where the claimant
is seeking another remedy (as here) and, in addition to breach of public law rights or
legitimate expectations, the claimant can establish that their private law rights have been
infringed. However, damages are not available purely for the infringement of a public law
right (R v Knowsley MBC, ex p Maguire (above)).
Summary
In this chapter you have considered the procedure and remedies in a judicial review claim,
and how they affect whether a claim is successful.
You have considered in particular the following:
• The decision-maker must be a public law body to be amenable to judicial review.
• Claimants must have ‘sufficient interest’ to have the standing to bring claims.
∘ Claimants who are directly affected by a decision have little difficulty in showing this.
∘ Pressure groups need to show they have a genuine interest in the proceedings and
are not ‘busy-bodies’.
• Claimants should apply for permission for judicial review promptly, without undue delay
and within three months of the date of the decisions affecting them. A claimant who
waits until the end of the three months before lodging a claim runs the risk of undue
delay. Courts have the discretion to extend the time limit of three months where good
reasons exist.
• Ouster clauses sometimes purport to preclude challenges to the decisions of a
decision-maker.
∘ The courts have found ways of circumventing legislative attempts to exclude their
judicial review jurisdiction and have held that complete ouster clauses will not protect
decisions that were never valid (‘nullities’).
∘ The courts are willing to uphold partial ouster clauses that do not attempt to exclude
judicial review, but merely shorten the time limit for bringing claims.
• There are two stages to judicial review claims:
∘ The permission stage
∘ Full hearing
• The following remedies are available:
∘ Prerogative remedies: Quashing, mandatory and prohibitory orders
∘ Non-prerogative remedies: Declarations, injunctions and damages.
See also the summary flowchart in Figure 7.3 that consolidates the issues you have studied in
Chapters 6 and 7. It also refers to judicial review claims based on Convention rights, which
you will study in Chapter 8.
Even litigation lawyers who do not specialise in public law will occasionally have to deal with
a judicial review claim. You should now be aware that making such a claim requires prompt
action and involves very different principles from an ordinary civil claim.
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Contents
Figure 7.3 Chapters 6 and 7 –summary flowchart
1. Can the claimant (‘C’) make a claim for judicial review?
Does C’s claim Does C have

raise public law Is C within the Is court’s judicial
‘sufficient time limit under review jurisdiction
issues? interest’ to make s 31(6)/CPR, Pt affected
a claim (SCA, 54 or any other by ‘ouster’
Is D amenable to s 31(3))?
judicial review specific statutory provisions/
(apply the ex p time limit statutory right of
[If Convention applicable? appeal?
Datafin test)? rights are
[If Convention engaged, is C a
rights are ‘victim’ (HRA,
engaged, is D a s 7)?]
‘public authority’
(HRA, s 6)?]
2. If so, what are C’s likely grounds of challenge?
Apply (where relevant) Lord Diplock’s grounds in CCSU:

• Acting without legal Is the decision IMPROPRIETY
authority? challenged ‘so • Procedural (un)fairness
• Wrongful delegation? unreasonable’ that no – fair hearing?
• Fettering of discretion? reasonable decision- – bias?
• Purpose(s)? maker would have come • Procedural ultra vires?
• Relevant/irrelevant to it (Wednesbury)
considerations? or ‘outrageous in its
• Error of law/error of fact? defiance of logic’
(CCSU)?
Breach of qualified Convention rights? Apply proportionality test
3. Procedure
CPR, Pt 54
Stage 1 – Permission
Stage 2 – Hearing
Discretionary (SCA, s 31(6))
Public law remedies Private law remedies

• Quashing order? • Declaration?
• Mandatory order? • Injunction?
• Prohibiting order? • Damages SCA, s 31(4) – only if ‘private’ law wrong?
[• Breach of Convention rights – damages under HRA, s 8]
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Sample questions
Question 1
In order to address concerns about the behaviour of nightclub door supervisors in
controlling patrons, Parliament passed the (fictitious) Regulation of Nightclubs Act 2016
(‘the Act’). The Act creates the Entertainment Conduct Authority (the Authority) to regulate
the nightclub industry and to grant licences to individuals. Every door supervisor must hold
a licence from the Authority to work in the industry.
The Nightclub Workers’ Federation (NWF) is concerned about the fee that the Authority
is asking its members to pay on applying for their licences, believing it has exceeded its
statutory powers and has acted in a biased manner. The NWF wishes to challenge this on
their behalf.
Can the NWF seek judicial review of the licence fee?
A No, because the Authority is not amenable to judicial review claims, nor does the NWF
have sufficient interest to apply for judicial review.
B No, because although the NWF does have sufficient interest to apply for judicial review,
the Authority is not amenable to judicial review claims.
C No, because although the Authority is amenable to judicial review claims, the NWF
does not have sufficient interest to apply for judicial review.
D Yes, because the Authority is amenable to judicial review claims, and the NWF does
have sufficient interest to apply for judicial review.
E Yes, because as the NWF has sufficient interest to apply for judicial review, the Authority
will be deemed to be amenable to judicial review claims.
Answer
Option D is correct. In order to seek judicial review of a decision, there must be a public
body carrying out a public function. Here, the Authority is empowered to grant licences, so
both elements are satisfied (ex p Datafin). The Authority is therefore amenable to judicial
review.
As regards standing, the NWF is a body representing a number of members but, not being
able to apply for a licence, is not itself directly affected by the decision. As such, it will
have to show that it has ‘sufficient interest’ to challenge the decision relating to application
fees, and the factors from the World Development Movement case will assist. The court will
consider the need to uphold the rule of law, which here involves what may be an arbitrary
attempt to impose a fee and a biased decision by a public body. The importance of the
issue, which in this instance is whether or not power is given in the statute to charge a
fee, and the facts of the case, which suggest that the challenge by the NWF would decide
a point of interest to a number of different applicants, would also be relevant. It is also
unlikely that its members would themselves have the resources to mount an individual
challenge. As such, the NWF may be permitted to seek judicial review.
Option A is wrong because it incorrectly states the position regarding both amenability and
standing. Although option B correctly states the position regarding standing, it is wrong
regarding amenability. Option C is correct regarding amenability, but wrong regarding
standing.
Option E is wrong. Although it correctly states that the NWF has standing, it does not
therefore follow that the decision-maker is amenable to judicial review claims.
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Question 2
A statute provides that all decisions by a particular public body ‘shall not be called into
question in any legal proceedings whatsoever’. A company now wants to challenge a
decision that adversely affects its interests two months after the decision was made. The
reason the company waited for two months before deciding to challenge the decision was
that its board of directors was unsure whether or not it was in the company’s interests to
bring a challenge. However, last week it obtained counsel’s opinion that there were valid
grounds for challenge.
Can the company seek judicial review of the decision?
A Yes, because the ouster clause will not protect decisions of the public body from
challenge and the claim will be lodged within the time limit of three months.
B Yes, because the ouster clause will not protect decisions of the public body from
challenge and the claim will be lodged without undue delay on the part of the
company.
C No, because even though the ouster clause will not protect decisions of the public body
from challenge, there has been undue delay on the part of the company in lodging
the claim.
D No, because the ouster clause will protect decisions of the public body from challenge
even though the claim will be lodged within the time limit of three months.
E No, because the ouster clause will protect decisions of the public body from challenge
and there has been undue delay on the part of the company in lodging the claim.
Answer
Option C is correct. The ouster clause is unlikely to protect the decision from challenge as in
Anisminic (above) the House of Lords held that ouster clauses would not protect decisions
that were ‘nullities’. Assuming that the counsel’s opinion correctly indicates there are valid
grounds for challenge, the ouster clause will not protect the decision from challenge.
However, the company must comply with the time limits and must seek permission promptly
and without undue delay (SCA 1981, s 31) and in any event within three months of the date
of the decision (CPR, Part 54). As the company has waited for two months without good
reason, it is probably guilty of undue delay so will not be granted permission to bring
a claim.
Option A is wrong; although it correctly sets out the position regarding the ouster clause,
it is wrong regarding the time limit; there has been undue delay on the part of the
company and so it probably cannot bring a claim even though it is still within three months
of the date of the decision. Option B is wrong as there has been undue delay on the
company’s part.
Options D and E are wrong because the ouster clause will not protect decisions of the
public body, even though option E does correctly state there has been undue delay.
Question 3
A local authority has the statutory power to license ice cream vans to sell ice cream within
its boundaries. A woman has applied to the local authority for a licence to operate an ice
cream van. The local authority has refused to consider her application. She has lost money
as a result of being unable to trade.
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What remedy or remedies should the woman apply for?

A A quashing order.
B A quashing order and damages.
C Damages.
D A mandatory order and damages.
E A mandatory order.
Answer
Option E is correct. The purpose of quashing orders is to set aside unlawful decisions, but the
local authority has refused even to consider the application. A mandatory order will force the
local authority to consider the woman’s application lawfully.
Although the woman has lost money due to the refusal to consider the application, she is
unlikely to obtain damages. In a claim for judicial review, a claimant can only be awarded
damages if they can establish that their private law rights have been infringed. However,
damages are not available purely for the infringement of a public law right (ex p Maguire
(above)).
Options A and B are therefore wrong because there is not a decision to quash, and
additionally option B refers to damages. Options C and D are wrong because they refer to
damages, even though option D does correctly refer to a mandatory order.
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8 The European Convention
on Human Rights
8.1 Introduction to the ECHR and the HRA 152

8.2 Background to the ECHR 152
8.3 Procedure 153
8.4 Absolute, limited and qualified rights 154
8.6 Derogations 158
8.7 Rights under the European Convention on Human Rights 158
8.8 Article 3 –Torture, inhuman or degrading treatment or punishment 160
8.9 Article 4 –Slavery 162
8.10 Article 5 –Right to liberty and security 163
8.11 Article 6 –Right to a fair trial 166
8.12 Retrospective crimes 172
8.13 Absolute and limited rights: conclusion 172
8.15 Article 8 –Right to respect for private and family life 174
8.16 Article 9 –Freedom of thought, conscience and religion 176
8.17 Article 10 –Freedom of expression 179
8.18 Article 11 –Freedom of assembly and association 181
8.19 Article 12 –The right to marry 183
8.20 Article 13 –The right to an effective remedy 183
8.21 Article 14 –Protection from discrimination 183
8.22 Article 1 of the First Protocol –Protection of property 184
8.23 Article 2 of the First Protocol –The right to education 185
8.24 Article 3 of the First Protocol –The right to free elections 185
8.25 Article 1 of Protocol 13 –Abolition of the death penalty 185
SQE1 syllabus
• HRA 1998 and the ECHR; and
• Schedule 1 of HRA 1998: the ‘Convention Rights’
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purposes only.
Learning outcomes
• identify the rights and freedoms set out in the ECHR;
• understand the procedure for bringing claims before the European Court of
Human Rights (ECtHR); and
• identify where a breach of a right granted by the ECHR occurs.
8.1 Introduction to the ECHR and the HRA

This chapter will introduce you to the main articles that make up the ECHR. However, before
we look at the articles themselves, it is necessary for you to understand the background to
the Convention and the Human Rights Act 1998, both of which you looked at in outline in
Chapter 2.
8.2 Background to the ECHR

The ECHR is distinct from EU law, with its own institutions and procedures. The ECHR was
adopted in 1950 and was drafted by the Council of Europe, an international organisation that
was formed after World War II, in an attempt to establish a common European heritage.
In adopting the ECHR the member states of the Council accepted an obligation to ‘accept
the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of
human rights and fundamental freedoms’. The ECHR was a response to the Holocaust and
other atrocities and egregious human rights violations that Europe had witnessed during and
before the War, and also to the spread of Communism into Central and Eastern Europe after
the War. The idea was that the ECHR would be a statement of the fundamental principles of
liberty accepted by the countries of Western Europe, and would prevent future violations of
human rights.
The ECHR is an international treaty, which has now been signed by 47 European states;
indeed Belarus is the only European state that has not signed it. The UK ratified the Treaty
in 1951. The effect of this is that the UK is bound as a matter of international law to comply
with the ECHR, by ensuring that UK law gives effect to a list of rights set out in the ECHR. If the
UK breaches the ECHR, it is possible for other states who are parties to bring proceedings
before the European Court of Human Rights (ECtHR) in Strasbourg, in addition to individual
applications to enforce rights under the ECHR. Judgments of the ECtHR are binding on the UK
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The European Convention on Human Rights
as a matter of international law. Article 1 of the ECHR requires the signatories to the ECHR,
including the UK, to secure the rights conferred by the ECHR in their own jurisdiction.
It was not until the enactment of the HRA 1998 that rights under the ECHR were incorporated
into UK law. Section 1 and Schedule 1 of the HRA 1998 incorporated most ECHR rights into UK
law as ‘Convention rights’. The HRA 1998 is covered in more detail is Chapters 2 and 9.
8.3 Procedure
8.3.1 Types of proceedings
There are two ways in which proceedings may commence:
(a) State applications. If a state is in violation of the ECHR, proceedings may be brought
against it by another signatory state.
For example, Georgia has lodged two separate inter-state applications against Russia.
The first was filed in 2007 and related to the deportation of hundreds of ethnic Georgians
by Russia following a row about spying (Georgia v Russia I (Application No 13255/07)).
The second was in connection with the conduct of the Russian military forces in the 2008
war between the two countries (Georgia v Russia II (Application No 38263/08)).
(b) Individual petitions to the ECtHR. Individuals who allege that their Convention rights have
been breached as a result of domestic law may start their own proceedings against
the state before the ECtHR in Strasbourg. However, it must be shown that any domestic
remedies that exist have first been exhausted. Furthermore, there is a time limit, requiring
the petition to be made within six months of the final decision (in the UK this will usually
be the decision of the highest UK court having jurisdiction).
Applicants must, personally and directly, be victims of violations of the ECHR, and must
have suffered a significant disadvantage.
In 2019, 40,667 cases were disposed of judicially by the ECtHR; there were 884 judgments
after full proceedings and 38,480 applications were declared inadmissible or struck out. Most
cases therefore do not proceed to a full hearing but, of those that have done so since 1959,
state violations have been found in 84% of cases.
Possible remedies include the court awarding compensation or requiring the state to change
its law. However, individual decisions are only binding as a matter of international law
under the ECHR and have no direct binding force in domestic law. The ECtHR relies on the
willingness of states to abide by the ECHR and accept its judgments.
It is also important to appreciate that the ECHR is a ‘living instrument’ in the sense that
it has to be generously interpreted in the light of its aim of protecting human rights, the
understanding of which may change with evolving social conditions. Thus the content of
the rights may change over time as the ECtHR reinterprets the ECHR to keep it attuned to
changing values.
8.3.2 Two-stage process

There are two main stages in cases brought before the Court: the admissibility stage and the
merits stage.
A single-judge formation will declare an application inadmissible should inadmissibility be
obvious from the outset; there is no right to appeal against its decisions.
Cases that are covered by well-established case law of the court will be allocated to a three-
member Committee, which will give a final decision or judgment.
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Other cases will be heard by a Chamber of judges, which will give judgment by a majority.
The Chamber’s judgment will become final only after three months, during which the
applicant or state party may ask for the case to be referred to the Grand Chamber for fresh
consideration. If the request for referral is accepted by the panel of the Grand Chamber, the
Grand Chamber will reconsider the case and hold a public hearing if necessary. The Grand
Chamber judgment will be final.
The Committee of Ministers of the Council of Europe is responsible for ensuring that states
comply with judgments of the ECtHR.
8.4 Absolute, limited and qualified rights

You will have noticed in looking through the ECHR that not all Convention rights are absolute.
Sometimes a public authority may be able to show that its action is within one of the
limitations or qualifications permitted by the Article in question, and is therefore lawful. You
will be looking at some of the limitations and qualifications in more detail later, but it is
important at this stage to understand the general concepts. These are derived from the case
law of the ECtHR in Strasbourg.
Convention rights are normally divided into three types:
(i) Absolute rights: These rights can never be interfered with in any circumstances
whatsoever. States must uphold them at all times.
(ii) Limited rights: These rights can only be limited in clearly defined and finite situations.
(iii) Qualified rights: These rights require a balance between the rights of the individual and
the wider public interest, and so may be interfered with to protect an important general
interest or the rights of others.
Before you look at the general concepts, it is important to establish which rights are absolute,
which are limited and which are qualified.
Table 8.1 below indicates whether each right is absolute, limited or qualified. The distinction
between absolute and limited rights can sometimes be a difficult one to draw. In this regard
you should distinguish between:
• rights that list exceptions that help to define the rights; these are absolute rights as any
conduct that falls within an exception does not constitute an interference with the right in
question; and
• rights that list specific and finite situations in which they can be interfered with; these are
limited rights as there are set circumstances where an interference is permissible.
You should note that there is scope for disagreement with some of the categorisations made
in the table below. The distinction between absolute and limited rights is not made in the
ECHR itself, and there is no authoritative list. For example, whilst there is universal agreement
that Article 3 is an absolute right, some sources agree with the above categorisations of
Articles 2 and 6, but others regard them as limited.
Generally speaking, Articles 2–7 (absolute and limited rights) cover the most fundamental
human rights and contain either no exceptions whatsoever or narrow express exceptions or
limitations, and Articles 8–11 and Article 1 of Protocol 1 cover qualified rights, which can be
overridden in the public interest.
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Table 8.1 Absolute, limited and qualified rights
Convention right Absolute Limited Qualified
Article 2 (right to life) Absolute. Note that

deprivation of life
resulting from the use
of no more force than
is absolutely necessary
in narrowly defined
circumstances does not
constitute an interference
with this right.
Article 3 (freedom from Absolute.

torture, inhuman and
degrading treatment)
Article 4 (freedom from Absolute. Note that

slavery, etc) certain activities are
excluded from the scope
of compulsory labour and
so do not constitute
an interference with
this right.
Article 5 (liberty and Limited – contains

security of the person) exceptions
in relation to lawful
arrest and detention.
Article 6 (fair trial) Absolute as to a fair trial. Limited in relation to

the trial being in
public.
Article 7 (punishment Absolute. Note that Article

according to existing 7 does not preclude the
law) trial and punishment of
acts that are criminal
according to general
principles recognised by
civilised nations.
Article 8 (respect for Qualified.

private and family life)
(continued )
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Table 8.1 (continued )
Convention right Absolute Limited Qualified
Article 9 (freedom of Absolute in relation to Qualified in

thought, etc) freedom of thought, etc. relation to
manifestation of
freedom
in worship,
teaching,
practice or
observation.
Article 10 (freedom of Qualified.

expression)
Article 11 (freedom Qualified.

of assembly and
association)
Article 12 (right to marry) Absolute, but according

to national law governing
the exercise of the right..
Article 1 of Protocol Qualified

1 (right to peaceful
enjoyment of
possessions)
8.5 Qualified rights

We shall now look in more detail at how the courts determine whether the interference with a
qualified right can be justified.
8.5.1 Qualifications must be express

Only restrictions on qualified rights that are expressed in the ECHR are recognised, and these
must be used for the purpose for which they have been prescribed (Art 18).
In addition, a restriction may only be relied upon if it is prescribed by law, has a legitimate
aim and is necessary in a democratic society. It must not be applied in a discriminatory
fashion (Art 14). We will now look in more detail at each of these requirements.
8.5.2 Qualifications must be prescribed by law (or be ‘in accordance with the law’)
A government can rely on a Convention qualification to justify a restriction on a Convention
right only if provisions of that state’s law actually take advantage of the qualification. So, for
example, it would not be possible for the UK Government to justify infringement of the right
to respect for private life (eg by telephone tapping) on the basis that it was needed for the
prevention of crime (Art 8), unless UK law clearly permitted the infringement. The law giving
156
effect to the qualification may be written or unwritten, but the qualification must be embodied
in law.
Moreover, the law must be accessible (in published form) and sufficiently precise to enable
the citizen to regulate his or her conduct. So in Malone v UK (1984) 7 EHRR 14, the ECtHR
held that English law on telephone tapping was not clear enough at that time to provide a
sufficient legal basis for a restriction on the right to respect for private life.
In the case of multiple sclerosis sufferer Debbie Purdy, the absence of a crime-specific policy
relating to assisted suicide, identifying the facts and circumstances that the Director of Public
Prosecutions (DPP) would take into account when deciding whether to prosecute an individual
for assisting another person to commit suicide, meant that the statutory offence of assisted
suicide was not in accordance with the law for the purposes of Article 8(2); accordingly it
amounted to a violation of her right to lead a private life (R (on the application of Purdy) v
DPP [2009] UKHL 45). The existing law was insufficiently clear about the factors the DPP would
take into account, and therefore a person could not accurately predict if they were likely to be
prosecuted with assisting another’s suicide.
8.5.3 Legitimate aims

Qualifications must be justified by reference to the aims specified for each right. The principle
is that the interests of society may justify restrictions on the rights of individuals.
The following are frequently specified in the Convention as legitimate state aims:
(a) The interests of national security, public safety or the economic well-being of the country
(eg Article 8)
(b) The prevention of disorder or crime (eg Articles 8 and 10)
(c) The protection of health or morals (eg Articles 8 and 10)
(d) The protection of the rights or freedoms of others (eg Article 8)
(e) The prevention or disclosure of information received in confidence (eg Article 10)
(f) Maintaining the authority and impartiality of the judiciary (eg Article 10)
8.5.4 Necessary in a democratic society

Qualifications are usually required to be ‘necessary in a democratic society’ (eg Articles 8
and 10). This means the following:
(a) There must be a ‘pressing social need’ (rather than an absolute necessity for any
restriction imposed).
(b) The interference with the ECHR right must be proportionate. This means that in order to
justify the restriction, public authorities may have to show that they have chosen methods
of achieving legitimate aims that do not go further than is necessary. Thus, for example,
any restriction imposed upon freedom of expression based on concerns for public
order must be shown to be a proportionate response to the fears. You will consider the
‘proportionality test’ in more detail at 8.14.2 below.
However, the state is allowed a ‘margin of appreciation’ in judging necessity (R v Handyside
(1976) 1 EHRR 737). This means that where member states may legitimately reach different
conclusions on a particular issue, the ECtHR will respect the judgment of a member state as to
what the public interest requires.
The qualities of a ‘democratic society’ include tolerance of minority opinions and lifestyles.
So the fact that a majority in a state opposes homosexuality does not excuse a law that
criminalises homosexual conduct in private contrary to Art 8 (R v Dudgeon (1982) 4 EHRR 149).
157
8.6 Derogations
Under Article 15 of the ECHR, a state may derogate from part of the ECHR ‘in time of war or
other public emergency threatening the life of the nation’. This means that for the period of
the derogation the state is not bound to apply the specified provisions. There are, however,
conditions that limit the power to derogate, and no derogation is possible in respect of
Articles 3 (torture, etc), 4(1) (slavery), or 7 (retrospective criminal offences), or from Article
2 (right to life) except in respect of deaths resulting from lawful acts of war. The principle is
clearly that some violations of human rights are so wrong that no state should countenance
them, even in wartime.
Section 14 HRA creates a statutory procedure for enacting a derogation as part of UK law,
and s 1 states that Convention rights are to be read subject to any such derogation. As a
result, a UK court will not be able to enforce Convention rights where a derogation is in
operation.
The UK has issued derogations from Article 5 of the ECHR (personal liberty) in respect of the
prevention of terrorism legislation in Northern Ireland (now expired) and the Anti-terrorism,
Crime and Security Act 2001. The delegated legislation implementing the latter derogation
was quashed by the House of Lords in A v Secretary of State for the Home Department, and
the Government subsequently removed the derogation on the enactment of the Prevention of
Terrorism Act 2005.
8.7 Rights under the European Convention on Human Rights

We will now look in greater detail at some absolute and limited rights and cases associated
with them. It is important for you to understand the scope of these absolute rights and how
they have been interpreted by the courts.
8.7.1 Article 2 –Right to life

Article 2 is an absolute right, but with exceptions that define its scope. It:
(a) prohibits the state from taking life; and
(b) places on the state a positive duty to protect life (see Osman v United Kingdom [1997]
1 FLR 193).
Article 2 does not prohibit the use of the death penalty, but Protocol 6 (which the UK ratified
in 1999) does. The death penalty cannot be reintroduced except for acts committed in time of
war/imminent threat of war.
No derogation from Article 2 is possible, except in respect of deaths resulting from lawful acts
of war.
Article 2(2) permits the use of force that results in the deprivation of life, but only if certain
conditions are met. The first condition is that the use of force must be no more than absolutely
necessary.
The second condition is that the use of force must be in pursuit of one or more of three
objectives.
• the force is used in defence of any person from unlawful violence.
• the force is used to effect a lawful arrest or to prevent the escape of a person lawfully
detained
• the force is used in action lawfully taken for the purpose of lawfully quelling a riot or
insurrection
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The leading case in this area is McCann v United Kingdom (1996) 21 EHRR 97 (the ‘death on
the rock’ case), which involved a challenge by the relatives of three Provisional IRA members
who were shot dead by SAS soldiers in Gibraltar in 1988. The relatives won by a slim majority
(10:9) on the basis that the force used was more than absolutely necessary. Whilst the
actions of the SAS soldiers who had killed the terrorists did not violate Article 2, the control
and planning of the operation lacked sufficient regard for the protection of the lives of the
suspects, so Article 2 had been violated.
8.7.2 Scope of Article 2

Case law has helped to define the scope of Article 2.
8.7.2.1 Embryos/foetuses
Article 2 has been held not to protect embryos by preventing their destruction when one party
withdraws his or her consent to implantation (Evans v UK (2006) 4 EHRLR 485–88). In this case,
the ECtHR dismissed an appeal by the applicant under Article 2 and accepted the decision
of the domestic courts that the embryos had no right to life under Article 2. The Court said this
decision was within the margin of appreciation allowed to member states. In the cases of Re
F (In Utero) (Wardship) [1988] 2 FLR 307 and Re MB (Medical Treatment) [1997] 2 FLR 426, it
had already been established that a foetus has no such right to life, so the right could clearly
not apply to an embryo.
8.7.2.2 The right to die

There is also case law regarding whether the right to life also encompasses the right to die
in the context of litigation regarding whether laws banning assisted suicide breach Article
2. In Pretty v UK (2002) 35 EHRR 1, Diane Pretty suffered from motor neurone disease. Both
the Divisional Court and the House of Lords held that the DPP had no power to give an
undertaking that her husband would not be prosecuted if he assisted her to commit suicide as
s 2(1) of the Suicide Act 1961 makes it an offence to encourage or assist suicide. The ECtHR
held that the right to die could not be read into the right to life protected by Article 2.
Whilst a right to die cannot be read into Article 2, there has been litigation regarding whether
laws banning assisted suicide breach Article 8, the right to respect for one’s private life, most
recently the case of R (on the application of Conway) v Secretary of State for Justice [2018]
EWCA Civ 1431. The appellant was terminally ill with motor neurone disease and applied for
a declaration of incompatibility of s 2(1) of the Suicide Act under the s 4 of the HRA, arguing
that the blanket ban on assisted suicide in s 2(1) was a disproportionate interference with his
Article 8 rights.
Although the Court of Appeal accepted that Article 8 was engaged, it nonetheless held
the blanket ban on assisted suicide in the Suicide Act 1961 s 2(1) was a necessary and
proportionate interference with the appellant’s Article 8 rights.
8.7.2.3 The duty to investigate

Article 2 also has a procedural element. This requires the state to carry out a full and thorough
investigation where an allegation has been made that there has been a breach of Article 2.
One of the most controversial cases regarding the duty to investigate followed the death of
Jean Charles de Menezes.
On 22 July 2005 (shortly after the attacks of 7 July 2005 when suicide bombers had murdered
52 people in London), Mr Menezes was wrongly identified as a suspected suicide bomber.
He was followed to an underground station and shot dead by armed officers while on board
a stationary train. In 2007, the Office of the Commissioner of the Police of the Metropolis was
found guilty of breaches of the Health and Safety at Work Act of 1974 in connection with Mr
Menezes’s death, but no individual police officers were prosecuted.
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In Da Silva v United Kingdom (2016) 63 EHRR 12, the ECtHR found that there had been no
breach of the duty under Article 2 to conduct an effective investigation into the death. As soon
as it was confirmed that Mr Menezes was not a suspected suicide bomber, the Metropolitan
Police Service publicly accepted that he had been killed in error by special firearms officers.
A representative of the Metropolitan Police Service flew to Brazil to apologise to his family
face to face and to make a payment to cover their financial needs. They were further advised
to seek independent legal advice and assured that any legal costs would be met by the
Metropolitan Police Service.
The decision not to prosecute any individual officer was not due to any failings in the
investigation or the state’s tolerance of or collusion in unlawful acts. Rather, it was due to the
fact that, following a thorough investigation, a prosecutor considered all the facts of the case
and concluded that there was insufficient evidence against any individual officer to meet the
threshold evidential test in respect of any criminal offence.
8.8 Article 3 –Torture, inhuman or degrading treatment or

punishment
Article 3 of the ECHR provides very simply that ‘No one shall be subjected to torture or to
inhuman or degrading treatment or punishment’. It is an absolute right and there are no
limitations or exceptions to this. Any treatment of an individual that falls within the scope of
Article 3 violates the Convention. The importance of Article 3 is also reflected in that it is one
of those articles from which the state is not permitted to derogate under Article 15.
8.8.1 Scope of Article 3

The leading case on what amounts to torture and inhuman treatment is Ireland v United
Kingdom (1979–1980) 2 EHRR 25. This case concerned the ill-treatment of suspected Irish
Republican Army terrorists in Northern Ireland in 1971. As part of the interrogation techniques
adopted by the police and security services, the suspects were made to stand against a
wall in an unnatural position for long periods of time, and were also placed in hoods and
deprived of sleep and food.
The ECtHR defined ‘torture’ as being ‘deliberate inhuman treatment causing very serious
and cruel suffering’ whilst it defined ‘inhuman treatment’ as treatment or punishment likely
to cause actual bodily injury or intense physical and mental suffering’. The ECtHR found that
the conduct in this case constituted inhuman or degrading treatment, albeit it was not severe
enough to be torture.
In Tyrer v United Kingdom (1979–80) 2 EHRR 1 a court in the Isle of Man sentenced the
applicant to three strokes of the birch for the offence of assault occasioning actual bodily
harm against another pupil at his school. A policeman administered the birch to the
applicant’s naked buttocks while he was being held down by two other policemen. The ECtHR
held that the punishment did not amount to torture or inhuman treatment within the meaning
of Article 3, as it did not meet the test set out in the UK v Ireland case. The ECtHR did,
however, find that Tyrer was subjected to degrading punishment under Article 3, as judicial
corporal punishment constituted an assault on an individual’s dignity and physical integrity.
Following a series of cases that came before the ECtHR in the late 1970s and 1980, Parliament
enacted legislation to outlaw corporal punishment in both state and –later –private schools.
The ECtHR has also held that the state has an obligation to ensure that non-state actors
such as parents or guardians do not punish children to a level at which Article 3 will be
engaged. In A v United Kingdom (1999) 27 EHRR 611, between the ages of 6 and 9 A had
been frequently beaten with a garden cane by his stepfather. These beatings had left
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significant bruising. The stepfather was subsequently charged with assault occasioning actual
bodily harm. At trial, he raised the defence available under English law that the beatings
represented reasonable chastisement, which he was entitled to inflict. The stepfather was
acquitted and A applied to the ECtHR, arguing that his treatment constituted a violation of his
rights under Article 3.
The Court found that the injuries inflicted on A were sufficient to engage Article 3, and that
the state had failed to put in place laws that would satisfactorily protect the rights of children
such as A. The Court found in particular that the law was deficient in leaving it up to a
jury to decide whether the treatment received by A amounted to reasonable chastisement.
Parliament subsequently amended the law in this area.
8.8.2 Deportation cases

A controversial area in which Article 3 has been applied involves cases where those who are
not British citizens are required to leave the UK. These cases usually involve people who are
being deported under the Immigration Act 1971. This Act allows the Government to deport
those who are lawfully in the UK but are not UK citizens if either they have been convicted of
a serious offence or their presence in the UK is not conducive to the public good. This latter
reason would cover those who are viewed as a risk to national security.
Other situations in which individuals may be required to leave the UK are removal and
extradition cases. Removal is where those who are not in the UK lawfully are removed. This
would, for example, include illegal immigrants. Extradition cases involve anyone living in
the UK being sent to another country in order to be tried for a criminal offence allegedly
committed in that country. The UK has an extradition treaty with many countries.
The ECtHR has held that it would be a violation of Articles 2 and/or 3 of the Convention if an
individual were to be deported to, removed to or extradited to a country where there was
a real risk that they might be killed, tortured or treated in any other way that would violate
one or both of these articles. The Court outlined this principle in Soering v United Kingdom
(1999) 11 EHRR 439. In this case, the United States had applied to the UK for the extradition of
Soering, who was alleged to have committed two murders while in the US.
The Court found that the proposed extradition of Soering to the United States would breach
his rights under Article 3. This was because, were Soering to be convicted of murder and
sentenced to death, the time he would spend on death row while awaiting execution would
cause him to suffer intense psychological suffering that would fall within the scope of Article 3.
The Soering case was decided before Article 1 of the 13th Protocol came into force (see 8.25
below). This Article bans the imposition of the death penalty. As a result, it would now also
violate Article 2 for an individual to be deported, removed or extradited to a state if there
are substantial grounds to believe that there is a real risk of that individual facing the death
penalty.
What is the position if the deportation of an individual to another country will not result in his
death but may lead to him suffering other forms of ill-treatment?
This was considered by the ECtHR in Chahal v United Kingdom (1997) 23 EHRR 413. In 1990,
the Secretary of State decided to deport Chahal, an Indian citizen lawfully resident in the UK,
in the interests of national security. In 1984, on a visit to India, he had been detained and
tortured by the Punjabi police due to his participation in a campaign for a Sikh homeland.
The Court found that Article 3 contained an absolute prohibition on the use of torture or
inhuman or degrading treatment, regardless of the circumstances of the case. There was
substantial evidence of serious human rights abuses by the Indian authorities and promises
that they had given as to Chahal’s safety were unreliable. The Court concluded that, where
there was a real risk that the receiving country would treat an individual in such a way as to
breach his Article 3 rights, any deportation would be unlawful.
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8.9 Article 4 –Slavery

8.9.1 Introduction
Article 4 of the ECHR prohibits slavery and forced labour. Article 4(1) provides that ‘No one
shall be held in slavery or servitude’ and Article 4(2) provides that ‘No one shall be required
to perform forced or compulsory labour’.
Article 4(3) states that certain forms of work do not constitute forced or compulsory labour.
These are:
• work ordinarily done by convicted prisoners as part of their sentence;
• compulsory military service in those European countries that still have this;
• work required in an emergency or calamity threatening the life or well-being of the
community; and
• any work or service that forms part of normal civic obligations.
Although slavery was abolished in most parts of the world in the 19th century, Article 4 is a
response to what happened during World War II, between 1939 and 1945. During the War,
Nazi Germany used millions of people from across the continent of Europe to carry out forced
labour in support of the Nazi war machine.
We shall now consider the meaning of some of the terms used in Article 4.
8.9.2 Slavery
The internationally accepted definition of slavery was set out in Article 1 of the 1926 Slavery
Convention. This defined slavery as ‘the status or condition of a person over whom any or all
of the powers attaching to the right of ownership are exercised’. The ECtHR has accepted this
definition.
8.9.3 Servitude
Someone in a position of servitude is not owned by another, and so is not a slave. The ECtHR
has found that servitude includes an obligation on the part of the person who is the ‘serf’ to
live on the property of another, and an inability for that person to change that condition.
8.9.4 Forced or compulsory labour

The meaning of the term ‘forced or compulsory labour’ was considered by the ECtHR in Van
der Mussele v Belgium (1984) 6 EHRR 163. Belgian law required trainee lawyers –as part
of their qualification process –to carry out legal work for poor clients without receiving any
payment. The trainees argued that this constituted a violation of Article 4(2), but the Court
disagreed. The Court said that the requirement to do this work had to be seen in its proper
context, which was that the trainees were gaining valuable experience, they were in the
process of qualifying into a profession, and doing this work did not prevent them from also
doing paid work for other clients.
The Court said that forced labour was work or service that an individual was forced to do
against their will. Although there is no easy test to work out when this will be met, the Court
said that a range of circumstances needed to be considered. These included the type of work
involved, the ‘penalty’ or burden to be imposed if the work was not carried out, and the level
of hardship or oppression to which the individual was subjected.
The Supreme Court considered the interpretation of forced labour in Reilly v Secretary of State
for Work and Pensions [2013] UKSC 68. This case involved a challenge to the requirement that
a person in receipt of the state benefit called Job Seeker’s Allowance had to carry out unpaid
work experience as a condition of continuing to receive this benefit. The Supreme Court found
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that this requirement did not breach of Article 4. The Court said that an essential element
of forced labour was that the individual had to be exploited, and that requirement was not
met here.
8.10 Article 5 –Right to liberty and security

8.10.1 Introduction
The overall purpose of Article 5 of the ECHR has been described as ensuring that no one
is deprived of their liberty in an ‘arbitrary fashion’. In particular, it lays down procedural
standards that must be followed before a person is deprived of their liberty.
Article 5(1) begins, ‘Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law’.
From this, you can see that Article 5 is a limited Article –it creates a right to liberty, but that
right is subject to several specific limitations set out in the rest of the Article. Also, even if one
of those limited situations exists, the deprivation of an individual’s liberty must still be carried
out through due process of law. An example of this would be if the police were to detain an
individual whom they reasonably suspect to have committed a crime, but fail to carry out
the arrest in the correct manner by not telling the individual that they are under arrest or the
reason for the arrest.
Article 5(1)(a)–(f) lists six ways in which an individual’s right to liberty may lawfully be
interfered with by the state. The most significant ways in which the state may lawfully restrict
the liberty of an individual are arrest and detention by the police, imprisonment after
conviction of a criminal offence, detention of the mentally ill in hospitals, and detention of
foreigners in the context of asylum and deportation cases.
In relation to arrest and detention, Article 5 requires:
(a) breach, or reasonable suspicion of breach, of some known law (Article 5(1)(a) and (c));
(b) the giving of reasons for arrest and charge (Article 5(2));
(c) a prompt and fair trial (Article 5(3) and (6));
(d) the availability of judicial review of the legality of detention (Article 5(4)); and
(e) the right to compensation for breach of Article 5 (Art 5(5)).
8.10.2 The meaning of deprivation of liberty

When a person is locked up in prison, they have clearly been deprived of their liberty, so
Article 5 will be engaged. However, there are situations that are less clear-cut so it is essential
to consider what the phrase ‘deprivation of liberty’ means to ascertain when Article 5 is
engaged.
There may be situations when an individual has their right of free movement restricted but is
otherwise free to carry on with their life. An example of this is an Anti-Social Behaviour Order
that prohibits an individual from entering a specific area, or a Football Banning Order that
prohibits an individual from attending football matches. These restrictions on movement do
not engage Art 5, because they do not deprive an individual of their liberty.
Although the above examples to do not engage Article 5, the ECtHR has said that the term
deprivation of liberty has a wider meaning than simply detaining someone in a cell. The Court
has held that what constitutes a deprivation of liberty is a matter of judgment based upon all
the circumstances.
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The leading case in this area is Guzzardi v Italy (1980) 3 EHRR 333. In 1975, an Italian
court ordered that Guzzardi, a suspected Mafia leader, should be placed under special
supervision for three years with an obligation to reside on a small Italian island. The
island measured some 50 square kilometres but the area for Guzzardi’s compulsory
residence was limited to some 2.5 square kilometres.
A majority of the ECtHR held that these limitations amounted to a deprivation of liberty.
In its judgment, the Court said that: ‘The difference between deprivation of and restriction
upon liberty is one of degree or intensity, and not one of nature or substance.’
What the Court meant by this was that, in any given situation, it was necessary to look at
the level of the restrictions placed on an applicant, rather than their specific nature. The
Court held that deprivation of liberty may take many forms, going beyond what it referred
to as ‘classic detention in prison’.
In Guzzardi’s case, the Court found that, whilst the area around which Guzzardi could
move far exceeded the dimensions of a cell and was not bounded by any physical
barrier, it covered a tiny fraction of an island to which access was difficult and about nine-
tenths of which was occupied by a prison. Also, Guzzardi was housed in a tiny village,
living in the company of other persons subjected to the same measure. He was not
permitted to visit the main settlement on the island, and his social contacts were limited
to his near family, his fellow ‘residents’ and the supervisory staff. In addition, Guzzardi was
not able to leave his dwelling between 10pm and 7am without giving prior notification
to the authorities. He had to report to the authorities twice a day and inform them of the
name and number of his correspondent whenever he wished to use the telephone. In
conclusion, the Court said:
It is admittedly not possible to speak of ‘deprivation of liberty’ on the strength of
any one of these factors taken individually, but cumulatively and in combination
they certainly raise an issue of categorisation from the viewpoint of Article 5. In
certain respects the treatment complained of resembles detention in an ‘open
prison’ or committal to a disciplinary unit.
In a UK context, the definition of the term ‘deprivation of liberty’ was considered by the
House of Lords in Secretary of State for the Home Department v JJ [2007] UKHL 45. In this
case, the Secretary of State used statutory powers to make what were called control
orders over six people of Iranian or Iraqi nationality. The orders were made because the
Secretary of State had reasonable grounds for suspecting them of involvement in terrorist-
related activity and he considered the orders to be necessary to protect members of the
public from a risk of terrorism.
The orders required each controlled person at all times to wear an electronic tagging
device, to remain within his specified residence, a one-bedroom flat, except between
10am and 4pm, and to permit police searches of the premises at any time. Visitors to
the premises were permitted only where prior Home Office permission had been given.
During the six hours when the controlled persons were permitted to leave their residences
they were confined to restricted urban areas, which deliberately did not extend, except in
one case, to any area where they had previously lived. Each area contained a mosque,
health care facilities, shops and entertainment and sporting facilities. Each controlled
person was prohibited from meeting anyone by pre- arrangement without prior Home
Office approval.
Adopting the approach taken by the ECtHR in the Guzzardi case, the House of Lords held
that the right to individual liberty in Article 5 connoted the physical liberty of the person
and, in cases of dispute, it was for the court to assess into which category a particular
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case fell. In order to do this, the court needed to consider the situation of the particular
individual and, taking account of a whole range of criteria including the type, duration,
effects and manner of implementation of the measures in question, to assess their impact
on them in the context of the life they might otherwise have been living. Applying those
factors, a majority of the House of Lords held that the right to liberty of the six individuals
had been violated.
The cases of Guzzardi and JJ make it clear that a person may be deprived of their liberty
under Article 5 without being detained in prison. However, in such cases there would need
to be a significant element of physical confinement together with significant restrictions on
the life that can be lived when not so confined.
In recent years, the ECtHR has had to determine whether the ‘kettling’ of protesters falls
within the scope of Article 5. Kettling is the practice of containing a group of people in a
particular area for a limited period of time in the interests of public order.
In Austin v UK (2012) 55 EHRR 14, four people had been contained within a police cordon
for several hours during an anti-capitalism demonstration in central London. One had
been taking part in the demonstration, but the others were simply passers-by. Police
intelligence indicated that the demonstration presented a serious threat to public order,
and a risk of damage to property and serious injury or death.
As in Guzzardi, the Court stressed that Article 5 was not concerned with mere restrictions
on liberty of movement. The difference between a deprivation of liberty and a restriction
upon it was one of degree, and therefore the type, duration, effects and manner of
implementation of the measure used had to be considered.
The Court found that whilst the coercive nature, duration and effect of the containment
suggested a deprivation of liberty, the context was significant. The police had had no
alternative but to establish the cordon to isolate and contain a large crowd and to avert
a real risk of injury or damage. The applicants did not argue that they had been deprived
of their liberty as soon as the cordon was imposed, and the Court was unable to identify
a point at which a restriction on their freedom of movement became a deprivation of
their liberty. The police had made attempts at dispersal and had kept the situation under
review, but the dangerous conditions that had necessitated the imposition of the cordon
existed until early evening. Therefore, those within the cordon could not be said to have
been deprived of their liberty within the meaning of Article 5.
8.10.3 When may the state lawfully deprive an individual of their liberty?
Article 5(1)(a)–(f) lists six situations in which an individual may lawfully be deprived of
their liberty without a violation of the basic right contained in Article 5. In summary, these
limitations are:
(a) when an individual is sent to prison after being convicted of a criminal offence;
(b) when an individual is arrested or detained in order to ensure that the individual complies
with a court order;
(c) when an individual is arrested on suspicion of having committed a criminal offence, to
prevent them from committing an offence or to prevent them from fleeing after having
committed an offence;
(d) when a minor is detained for the purposes of educational supervision;
(e) when someone who is mentally ill is detained for their own protection or the protection of
others; and
(f) the detention of individuals in connection with asylum, deportation or extradition.
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Even if one of the limitations exists, any deprivation of liberty will only be within the
requirements of Article 5 if it takes place in accordance with a procedure prescribed by law.
This means that, if the state deprives an individual of his liberty, that detention must not be
carried out in an arbitrary manner –proper legal procedures must exist and must be followed
if a deprivation of liberty is to be lawful. In Saadi v United Kingdom (2008) 47 EHRR, the
ECtHR stated that a number of requirements need to be met in order to prevent a deprivation
of liberty being arbitrary.
• Firstly, the detention has to be carried out in good faith. This means that it has to be
closely connected to one of the purposes listed in Article 5(1)(a)–(f).
• Secondly, the detention must be necessary. This means that it can only be justified when
less severe measures have been considered and rejected.
• Thirdly, the length of the detention should not exceed that reasonably required for the
purpose pursued.
• Fourthly, proper records of the reason for the detention must be kept.
• Finally, the detention must be lawful within the terms of the national law of the state
concerned.
For example, Article 5(1)(a) permits the lawful detention of a person after conviction by
a competent court. Detention under this sub-paragraph will only be lawful if the term of
imprisonment imposed is proportionate to the crime committed, and there is a clear link
between the offence, the crime committed and the purpose for which the convicted person is
detained in prison.
8.11 Article 6 –Right to a fair trial

8.11.1 Introduction
Article 6 has three sections, Article 6(1), Article 6(2) and Article 6(3).
Article 6(1) provides:
In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part of the
trial in the interest of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.
Article 6(1) applies both to civil and criminal cases. We shall examine each type of case
in turn.
8.11.2 Civil rights and obligations

Article 6 does not provide a definition of what is meant by the term ‘civil rights and
obligations’. Rather it is a term to which the ECtHR has given its own particular meaning, and
that meaning goes beyond whether the national law of a particular state views a matter as
being civil in nature.
As a starting point, the Court has said that Article 6 will only be invoked where a case
concerns an individual attempting to assert a substantive legal right that is recognised in
national law. Typical cases that are clearly civil in nature are when an individual seeks to
enforce their private law rights in contract, tort or property. To take an example, the right to
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a fair trial under Article 6 would apply in a trial involving an alleged breach of contract by
the supplier of goods, or a trial where an individual claims damages for personal injuries
sustained in a road traffic accident caused by the negligence of another driver.
The Court has also recognised that employment law cases and the decisions of disciplinary
bodies that have the effect of preventing an individual pursuing their chosen profession also
fall with Article 6.
Article 6 can also apply to the administrative decisions taken by local authorities and other
public authorities, such as the determination of an application for a licence to carry out a
particular activity or decisions on the grant or refusal of planning permission. If a public
authority fails to provide an applicant in such cases with a fair trial, the applicant will have
recourse to judicial review proceedings to challenge the decision made.
8.11.3 Criminal charges

The definition of what amounts to a ‘criminal charge’ is again something that the ECtHR has
determined. The leading case on this point is Engel v The Netherlands (1979–80) 1 EHRR 647,
where the Court needed to determine whether penalties imposed on conscripted soldiers
for breaching military discipline amounted to criminal charges within the meaning of Article
6. The Court found that the disciplinary measures did fall within the definition of criminal
charges. The Court set out a number of criteria that had to be applied by a court when
deciding whether a legal process constitutes the determination of a criminal charge.
The starting point for a court is to determine whether the national law of a state classifies a
matter as being ‘criminal’ as opposed to disciplinary or administrative. If it is so classified,
Article 6 will apply.
If, however, the matter is not viewed by national law as being criminal in nature, a court must
then determine whether the proceedings against an individual are similar to a criminal trial.
For example, do the proceedings require a finding of guilt or innocence to be made? The
court should also consider what the purpose behind the proceedings is. If the purpose is to
impose some form of punishment on an individual, it is likely that the proceedings will be seen
as involving the determination of a criminal charge.
Following the principles outlined in Engel, the ECtHR has found that cases involving prison
discipline and administrative offences concerning road traffic or environmental matters
constitute the determination of a criminal charge.
8.11.4 Articles 6(2) and 6(3)

The provisions set out in Article 6(1) apply in both civil and criminal cases. Articles 6(2) and
6(3), however, apply only to criminal matters.
Article 6(2) provides that everyone charged with a criminal offence shall be presumed
innocent until proven guilty according to law. The presumption of innocence is also a
longstanding part of English criminal law.
Article 6(3) sets out a series of minimum rights that apply to those charged with a criminal
offence. These rights are:
• to be told promptly and fully the detail of the case against them;
• to have sufficient time and facilities to prepare their defence;
• to defend themselves either personally or with the assistance of a lawyer, who should be
provided by the state where necessary;
• to call witnesses in their defence and to cross-examine witnesses who have given
evidence against them; and
• to have an interpreter provided free where necessary.
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8.11.5 Article 6(1) and criminal cases

Article 6(1) sets out the elements that need to be met when the civil rights and obligations
of an individual, or criminal charges against an individual, are being determined. This
paragraph will concentrate on how these elements apply in a criminal context.
The elements are:
• an individual should have access to the court;
• that court should be independent and impartial;
• the trial should be in public and the decision of the court pronounced publicly;
• the trial should take place within a reasonable time; and
• the trial itself should be conducted in a fair way.
We shall consider these elements in turn.
8.11.5.1 Access to the court

The right of access to the court is unlikely to cause problems in a criminal case as the
defendant will be on the receiving end of proceedings brought against him by the state.
8.11.5.2 Independent and impartial tribunal

It is a fundamental requirement of a criminal case that the court is independent of the state
and does not exhibit bias towards the prosecution.
The case of R (Anderson) v Secretary of State for the Home Department was covered in
Chapter 4. Anderson was convicted of murder and received a mandatory sentence of
life imprisonment. He was, however, eligible for release on licence after he had served a
minimum term of imprisonment, known as a tariff. Although the trial judge could recommend
how long the tariff should be, the ultimate decision belonged with the Home Secretary,
a member of the executive. The Home Secretary gave Anderson a tariff longer than that
recommended by the trial judge. The House of Lords found that this violated Anderson’s rights
under Article 6(1) because, as a member of the executive with a political motive for wanting to
be seen to be tough on crime, the Home Secretary was not an independent tribunal.
In terms of the impartiality of the court, the rules of natural justice remain relevant. If a judge
or magistrate has a personal interest in the outcome of a case, they should automatically
remove themselves –or be removed –from the case. If not, bias will be presumed. To take
an example, a magistrate should not hear a case involving an alleged theft, if the magistrate
was the actual victim of the theft.
If a judge or magistrate has an indirect interest in a case, there is no automatic presumption
of bias, and any appellate court would need to apply the test in Porter v Magill (covered
in Chapter 6), namely whether a fair-minded and informed observer would conclude there
was a real possibility that the court was biased. This situation might arise, for example, if a
magistrate was hearing a case involving an alleged theft from that magistrate’s next door
neighbour.
8.11.5.3 Public trial

There is an expectation that a criminal trial will take place in public. The idea that the state
should be able to routinely conduct secret trials behind closed doors is anathema to the
ECHR. Trials that are open to the press and public deter courts from acting inappropriately
and help to maintain public confidence in the criminal justice system.
Article 6(1) does, however, permit the press and public to be excluded from all or part of a
trial in a limited number of situations. These situations are:
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• where the exclusion is required in the interests of morality, public order or national
security;
• where the exclusion is required in the interests of juveniles or the protection of the private
life of the parties; or
• where there are special circumstances that, in the opinion of the court, would prejudice
the interests of justice.
8.11.5.4 Trial within a reasonable time

Article 6(1) requires criminal trials to be held within a reasonable time. This may be
particularly important for a defendant who has been refused bail by the court, and who is
remanded in custody until their trial date. In the United Kingdom, rules that are known as
custody time limits ensure that defendants who are remanded in custody have their trials
heard within a reasonable time. Briefly, these rules say that defendants should not be held in
custody for longer than six months prior to their trial, although the limit has temporarily been
extended to eight months due to the backlog of cases caused by COVID-19.
8.11.5.5 Effective participation

A defendant should be able to participate effectively in their trial. At its most basic, this means
that the trial should take place in the defendant’s presence. It also means that the defendant
should be able to follow and understand the proceedings. This can be a particular issue
where the defendant is a child.
In T v United Kingdom (2000) 30 EHRR 121, two 11-year-old boys were charged with the
horrific murder of a toddler. The case attracted enormous media attention, and was heard
in the adult Crown Court, following the rules and procedure of that court. Normally children
and juveniles are tried before the Youth Court, which operates on a more informal basis.
Although some steps were taken to enable the boys to understand the proceedings –such as
the advocates removing their wigs and gowns –the ECtHR found that these measures were
insufficient to ensure their effective participation in the trial.
8.11.5.6 Exclusion of evidence

Another crucial area to consider when looking at the fairness of a criminal trial is how the
court deals with prosecution evidence that has been obtained in an illegal or improper
manner. The ECtHR has made it clear that detailed rules of criminal procedure and rules on
the admissibility of evidence are matters for the national law of states who are signatories to
the Convention.
Article 6(1) does not require a court to exclude evidence that has been obtained illegally or
improperly. The Court has accepted that national laws may allow for the use of such evidence,
and the Court will only involve itself where the overall circumstances of a case make a trial
unfair within the meaning of Article 6.
In the UK, s 78 Police and Criminal Evidence Act 1984 (PACE) provides a trial court with a
discretionary power to exclude any prosecution evidence. Section 78(1) provides:
In any proceedings the court may refuse to allow evidence on which the prosecution
proposes to rely to be given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence was obtained, the
admission of the evidence would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.
The ECtHR considered the use of section 78 in the case Khan v United Kingdom (2000) 31
EHRR 45. Khan was convicted of drugs offences, largely on the basis of admissions he had
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made that were recorded on a bugging device that had been placed at premises Khan was
visiting. The trial judge declined to exclude this evidence under s 78. Khan argued that this
violated his right to a fair trial under Article 6 and also his right to privacy under Article 8.
The ECtHR found that the installation of the bugging device had violated Khan’s right to
privacy, as the law in England concerning the use by the police of a covert listening device
was not sufficiently clear, and the installation of the bug was therefore unlawful. Despite this,
the Court held that there had been no violation of Khan’s right to a fair trial. The Court said
that the key question for the purposes of Article 6 was whether the trial as a whole was fair.
Khan had ample opportunity to challenge both the authenticity and the use of the recording,
and had the domestic courts been of the view that the admission of the evidence would have
given rise to substantive unfairness, they would have had a discretion to exclude it under s
78 PACE.
The approach that UK courts now take to evidence that the police have obtained improperly
or unlawfully is to allow the prosecution to use this evidence if it is relevant to an issue in the
case. The courts will only exclude this evidence if there is something unreliable about it.
There are, however, some circumstances in which the courts must exclude prosecution
evidence. The courts will refuse to allow the use of evidence in criminal proceedings if that
evidence has been obtained through torture or inhuman treatment. To allow such evidence
to be used at trial would be in breach of Article 3 of the Convention. Also, under s 76 PACE
courts must exclude evidence of any confession given by a defendant in criminal proceedings
if that evidence has been obtained either through oppressive behaviour by the police, or if
there are any other circumstances that make it unreliable.
8.11.6 Article 6(2) –The presumption of innocence

A requirement of a fair trial at common law is that a defendant charged with an offence is
presumed to be innocent until such time as they are convicted. If the state chooses to bring
criminal proceedings against one of its citizens, it is for the state to prove the guilt of that
citizen, rather than the citizen needing to prove their innocence. The citizen is not required to
give evidence at their trial, to call witnesses in support of their case or to provide evidence to
the prosecution that might serve to incriminate them.
Article 6(2) repeats this rule. It states that ‘Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law’.
8.11.6.1 Strict liability offences

The criminal law of the United Kingdom, like many other countries, contains a number of
offences of strict liability. A strict liability offence is an offence of which a defendant is guilty if
the prosecution can prove the existence of certain facts. It is not necessary for the prosecution
to also show that the defendant had any form of guilty mind.
The ECtHR considered whether such offences breach the requirements of Article 6(2) in
Salabiaku v France (1991) 13 EHRR 379. In this case, the defendant was charged with an
offence of smuggling prohibited goods. Under French law, there was a presumption of guilt if
anyone was found in possession of prohibited goods. The ECtHR found that this provision did
not violate Article 6(2). The Court said that such laws are permissible provided that they are
reasonable.
8.11.6.2 Right to silence

Article 6(2) does not state explicitly that a defendant has a right to remain silent when
questioned about their involvement in an offence. This right can, however, be read into the
presumption of innocence in Article 6(2), as this requires the prosecution to prove its case
against the defendant.
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8.11.6.3 Inferences from silence

Of far greater significance is whether provisions in the criminal law that allow courts to draw
negative conclusions –or adverse inferences as they are usually called –from a defendant’s
refusal to answer questions are compatible with the presumption of innocence in Article 6(2).
The Criminal Justice and Public Order Act 1994 contains provisions that permit a court to draw
adverse inferences if a defendant does not answer questions from the police, but at their trial
puts forward a defence that they could have raised when questioned at the police station. The
inference that the court may draw is that the defendant made up or fabricated their defence
after leaving the police station.
Similar provisions allow a court to draw an adverse inference from a defendant’s failure to
account for an object or substance in their possession if asked to do so by the police, or if the
defendant fails to account for the fact that they are arrested at the place where an offence
has been committed shortly after the offence has occurred. The inference that the court may
draw in these cases is that the defendant remained silent because they had no innocent
explanation to give.
In Murray v United Kingdom (1996) 22 EHRR 29, Murray was charged with the offence of
aiding and abetting the false imprisonment of a police informer, after being arrested in a
property where Irish terrorists had been holding captive a police informer. Murray refused
to answer any questions put to him at the police station, and was convicted at trial after the
judge drew adverse inferences from that silence.
The ECtHR found that this did not violate his rights under Article 6 as, in the circumstances,
his presence at the property clearly required an explanation and, in the absence of such an
explanation, it was reasonable for adverse inferences to be drawn. However, although the
Court said that there was no rule to prevent adverse inferences being drawn, it would be in
breach of Article 6 were a defendant to be convicted on the basis of their silence alone.
8.11.7 Additional rights of the defendant in criminal proceedings

Article 6(3) of the ECHR provides some additional rights to anyone charged with a criminal
offence. Although set out separately, these rights are really part of the overall right to a fair
trial in Article 6(1).
We shall consider each right in turn.
8.11.7.1 The right to be informed

Anyone charged with a criminal offence has the right to be told the nature and cause of the
accusation against them. This information must be given promptly and in detail, so that the
defendant can prepare any defence they may wish to raise. The information must be given
in a language that the defendant understands. This requirement means that the police must
tell an individual the detail of any offence for which that individual has been arrested and
charged. It also obliges the prosecuting authorities to supply details of their case to the
defendant, so that they know what evidence will be used against them at trial.
8.11.7.2 The right to have adequate time and facilities to prepare the defence
A defendant must also be given adequate time and facilities for the preparation of their
defence. A defendant may, for example, require time to contact witnesses who may assist their
defence or to obtain documents relevant to their defence.
8.11.7.3 The right to defend themselves or have legal representation

A further right that the defendant has is to defend themselves in person or with legal
assistance. If a defendant is unable to pay for that assistance, it should be provided free of
charge when the interests of justice so require.
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8.11.7.4 The right to call and cross-examine witnesses

In a criminal trial, evidence will be called. This may be in the form of documents or other
exhibits, but usually the evidence comes from witnesses who give oral evidence. A defendant
has the right to have examined witnesses against them and to obtain the attendance and
examination of witnesses on their own behalf.
There are circumstances when a defendant may be unable to cross-examine a witness, if,
for example, that witness has died or is overseas. In such cases, the written statement of the
absent witness may be read out to the court. This will not breach Article 6, although the judge
will direct the jury to treat such evidence with caution as it cannot be tested by the defendant.
Occasionally, the identity of a witness may be withheld by the prosecution. This might, for
example, occur in a case involving matters of national security. The giving of evidence in this
way will not breach Article 6, but again the trial judge must give appropriate directions to
the jury.
8.11.7.5 The right to have the free assistance of an interpreter if required

The final right set out in Article 6(3) requires the court to ensure that an interpreter is available
if a defendant is unable to understand the language of the court.
8.12 Retrospective crimes

Article 7 provides that a person cannot be charged with a criminal offence for conduct that
was not a crime when they committed it. This means that the state must clearly define what
constitutes a criminal offence so people know when they are breaking the law. It is also a
violation of Article 7 for the courts to impose a heavier penalty than was applicable at the
time the offence was committed.
In SW v United Kingdom; CR v United Kingdom (1995) 21 EHRR 363 the applicants had been
convicted of raping their wives. They complained that they had been made retrospectively
criminally liable for rape within marriage, since at the time they committed their offences, an
exception in the criminal law for intercourse in marriage still existed. Accordingly, they claimed
that their actions were not criminal at the time they had been committed, and so there was
a violation of Article 7. The ECtHR rejected the argument, as Article 7 did not preclude the
gradual clarification of the principles of criminal liability on a case-by-case basis provided the
development could reasonably be foreseen.
Article 7(2) ECHR contains an exception, which is that people can still be prosecuted
retrospectively for conduct that was ‘criminal according to the general principles of law
recognised by civilised nations’, even if the conduct was not criminal at the time it was carried
out. This was included to ensure that after World War II Article 7(1) did not prevent individuals
from being prosecuted for war crimes that did not constitute criminal offences in Nazi
Germany and other relevant states at the time of their commission.
8.13 Absolute and limited rights: conclusion

This completes our consideration of some of the absolute and limited rights under the ECHR.
As you have seen, absolute rights cannot be interfered with at all, whilst limited rights can be
curtailed only in very specific circumstances. It is a case of judicial interpretation of the scope
of each right and how widely the courts are prepared to apply it and (where applicable) any
exceptions and limitations.
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8.14 Qualified rights

8.14.1 Introduction
We are now going to move on to consider some of the qualified rights under the Convention
in more detail. As we have already seen, these qualified rights have much wider qualifications
written into them (see 8.5 above). A Government can only lawfully interfere with a qualified
right if the interference is prescribed by law, has a legitimate aim and is necessary in a
democratic society. You will now consider the ‘proportionality test’ in more detail, which is the
test the courts apply when deciding whether interference with a qualified right is ‘necessary in
a democratic society’.
8.14.2 The proportionality test

The ‘proportionality test’ is used by the courts when states are seeking to justify interfering
with a qualified Convention right. The doctrine of proportionality ensures that there is a fair
balance between pursuing a legitimate aim and the protection of Convention rights. The test
was originally set out in the case of R (on the application of Daly) v Secretary of State for the
Home Department [2001] 2 AC 532. It was then built on in Huang v Secretary of State for the
Home Department [2007] UKHL 11. The two tests were then combined in the case of Bank
Mellat v HM Treasury (No 2) [2013] UKSC 39. In the Bank Mellat case the Supreme Court set
out the following four-part test:
(i) whether the objective of the measure complained of is sufficiently important to justify the
limitation of a fundamental right;
(ii) whether the measure is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair
balance has been struck between the rights of the individual and the interests of the
community.
The case of R (on the application of Swami Suryananda) v Welsh Ministers [2007] EWCA
Civ 893 shows how this test works in practice. Following the increased incidence of bovine
tuberculosis amongst cattle, the Welsh Government adopted a policy of slaughtering all
positively tested cattle to reduce the spread of the disease. A Hindu community’s temple
bullock tested positive. Its slaughter would have been a particularly sacrilegious act to the
community, so they sought to have it excepted from the policy of automatic slaughter,
suggesting instead a regime of isolation and testing. The ministers entered into a
dialogue with the community, and took account of expert evidence before making the
decision to slaughter the bullock.
The community applied for judicial review of the decision but, after success at first
instance, lost in the Court of Appeal, which approached the case in the following way.
The Court asked if the slaughter of the bullock engaged the rights of the Hindu community
under Article 9. The Court accepted that this was the case because the slaughter of the
bullock was a violation of the community’s religious beliefs.
The Court of Appeal then applied the test set out in Article 9(2).
Firstly, the slaughter of the bullock had to be prescribed by law. This requirement was
satisfied because the ministers were using powers given to them in the Animal Health
Act 1981.
Secondly, the slaughter of the bullock had to be in pursuit of a legitimate aim. One of the
legitimate aims contained in Article 9(2) is the protection of health. As the slaughter of
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the bullock was intended to prevent the spread of bovine tuberculosis, this requirement
was met. The Court also said that another legitimate aim – the economic well-being
of the country – was also relevant as the spread of bovine tuberculosis was having a
devastating effect upon the rural economy in Wales.
Finally, the Court of Appeal considered whether the decision to slaughter the bullock was
proportionate. The Court said that it was. Stopping the spread of bovine tuberculosis
in Wales was an objective that was sufficiently important to limit the rights of the Hindu
community. As the temple bullock had tested positive for this disease, its slaughter was
a rational way to stop the spread of the disease. The Welsh ministers had considered
alternatives, such as quarantining the animal, but had obtained expert evidence to
suggest that this would not prevent the spread of this highly contagious disease. The
Court found ultimately that an appropriate balance had been struck between the rights of
the Hindu community and the rights of the wider Welsh community – whilst the slaughter
of the bullock was a significant interference with the community’s religious beliefs, it
was justified given the catastrophic consequences the disease could have were it not
controlled.
8.15 Article 8 – Right to respect for private and family life

8.15.1 Introduction
Article 8 guarantees respect for four things: a person’s private life, family life, home and
correspondence.
A lot of issues have been held to come within the scope of a person’s private life, including:
(a) bodily integrity (eg being forced to have medical treatment);
(b) personal autonomy (the right to make decisions about how you live your life);
(c) sexuality; and
(d) personal information (its holding, use or disclosure).
A case concerning an individual’s Article 8 rights is Peck v United Kingdom (2003) 36

EHRR 41. Mr Peck (P) was standing in the street, attempting suicide by cutting his wrists.
He was captured on CCTV and, although the CCTV images did not show the attempted
suicide, they clearly identified P brandishing a knife in a public place. The police attended
the scene. P was not charged with any criminal offence, but the CCTV images were later
used in a campaign by the authorities to reflect the effectiveness of CCTV in combatting
crime. There was no attempt to mask P’s identity. P complained to the relevant media
commissions about the disclosures and unsuccessfully sought judicial review of
the disclosure.
The ECtHR found that the disclosure by the local council of the relevant footage
constituted serious interference with P’s right to respect for his private life. Although
disclosure pursued the legitimate aim of prevention of disorder and crime, it was
disproportionate (no attempt was made to conceal P’s identity or obtain his consent). The
Court acknowledged that P was in a public street when he was filmed, but stated that
‘he was not there for the purpose of participating in any public event and he was not a
public figure’.
In the case of S and Marper v the United Kingdom (2008) (Grand Chamber), (2009) 48 EHRR
50, the ECtHR held that the retention of fingerprints and DNA, as permitted by certain of the
UK’s statutory provisions, clearly both invoked Article 8 and breached the applicants’ rights
under that Article. The relevant statutory provisions were contained in PACE. They provided
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for the indefinite retention of fingerprints and DNA samples obtained as a result of being
investigated, even where the person was subsequently acquitted of the offence being
investigated or the proceedings against them were discontinued.
The ECtHR concluded that the retention constituted ‘a disproportionate interference with
the applicants’ right to respect for private life and cannot be regarded as necessary in a
democratic society’. This conflicted with a previous decision of the House of Lords in R (S)
v Chief Constable of South Yorkshire [2004] UKHL 39. In this case their Lordships had held
by majority that Article 8(1) was not engaged and held unanimously that the retention was
justified under Article 8(2).
To comply with the ECtHR’s judgment, Parliament enacted the Protection of Freedoms Act
2012, which includes provisions requiring the deletion of some DNA profiles from the DNA
database; these provisions came into force on 31 October 2013.
8.15.1.1 Family life

Family life covers one’s relationship with one’s close family, and includes a man and a woman
who are not married but who live in a stable relationship.
8.15.1.2 Home
This means the right to respect for one’s home and where one currently lives.
8.15.1.3 Correspondence
This includes phone calls, letters and e-mails.
8.15.2 Article 8 and deportation, removal and extradition

You have seen earlier on in the chapter (8.8.2 above) that the provisions of the ECHR have
had a significant impact in cases where the Government seeks to deport, remove or extradite
an individual from the United Kingdom. Deportation, extradition and removal cases may also
engage Article 8, particularly the right to respect for family life.
Some of these cases concern the conditions an individual will face in the country to which
they are being sent. In R (Razgar) v Secretary of State for the Home Department [2004] UKHL
27, Razgar was a failed asylum seeker who was due to be removed back to Germany –from
where he had come to the UK –or Iraq, his country of origin. Razgar was receiving psychiatric
treatment for depression and post-traumatic stress disorder arising from his alleged ill-
treatment in Iraq, and his fear of ill-treatment in Germany. He argued that the foreseeable
consequences for his mental health were he to be removed from the UK would engage his
rights under Article 8, and that his removal could not be justified under Article 8(2).
Although Razgar’s particular claim was dismissed, the House of Lords held that Article 8 could
be engaged where the main issue was not the severance of the family and social ties that
the applicant had enjoyed in the expelling country, but was rather the consequence for their
mental or physical health of removal to the receiving country. Their Lordships did, however,
say that the threshold for establishing this was high, and would require an applicant to show
that the violation of their rights would be flagrant. This would need to be something very much
more extreme than showing that healthcare standards in the receiving country were not as
good as those in the expelling country.
The much more usual situation in which those required to leave the UK raise arguments
under Article 8 is when an individual argues that their deportation, removal or extradition will
disproportionately damage family ties and relationships that they have established while in
the UK.
This was considered by the European Court of Human Rights in Uner v The Netherlands (2007)
45 EHRR 14. Uner was born in Turkey, but had moved to the Netherlands with his mother and
two brothers in 1981, when he was 12 years old. In 1988 he obtained a permanent residence
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permit. In 1991, Uner entered into a relationship with a Dutch national. They started living
together shortly afterwards and had a son in 1992. They lived together for some 16 months
before Uner moved out. In 1994, Uner was convicted of manslaughter and assault. He had
two previous convictions in the Netherlands for violent offences. He was sentenced to seven
years’ imprisonment.
Uner continued to see his partner while he was in prison and a second child was born to the
couple in 1996. In 1997, Uner’s permanent residence permit was withdrawn and a 10-year
exclusion order imposed on him in view of his conviction and sentence. This meant that he
could not live in the Netherlands for a 10-year period.
The Dutch authorities considered that the general interest in ensuring public safety outweighed
Uner’s interest in being able to continue his family life in the Netherlands. Uner argued
that the authorities had violated his rights under Article 8 by failing to strike a fair balance
between those competing interests.
The ECtHR held that the deportation, removal or extradition of an individual could engage
the right to respect for his family life under Article 8(1) and, if it did, there were several factors
that the court needed to apply to determine if that deportation, removal or extradition was
proportionate. These were:
1. The length of time the individual has been in the country;
2. The seriousness of the offences that the individual has committed;
3. Details of the particular family circumstances of the individual, such as the age of their
children or the length of any relationship;
4. The interests of the children;
5. The seriousness of the difficulties that the family may experience in the receiving
country; and
6. The nature of the ties that the individual has with both the expelling and the receiving
country.
In Uner’s case, the Court found that there had been no violation of Article 8. Whilst Uner had
strong ties to the Netherlands, he had only lived with his partner and first-born son for a short
period. He had then put an end to the cohabitation and had never lived with the second child.
Whilst Uner had arrived in the Netherlands at a young age, he still had social and cultural
ties with Turkey. The offences of manslaughter and assault committed by Uner were of a very
serious nature. Taking his previous convictions into account, Uner had criminal propensities.
Also, Uner’s children were still very young and thus of an adaptable age. The Court said that
given the nature and seriousness of Uner’s offences, the Netherlands had struck a fair balance
between its own interests and those of Uner.
We will be analysing Article 8 further in the next chapter, which looks at conflicting Convention
rights.
8.16 Article 9 –Freedom of thought, conscience and religion

8.16.1 Introduction
Article 9(1) provides: ‘Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief, in worship,
teaching, practice and observance.’
So far as freedom of thought, conscience and religion are concerned, it is an absolute right.
However, the right to manifest religion or belief is a qualified right and may therefore be
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subject to restrictions that are prescribed by law, in pursuit of a legitimate aim and are
proportionate.
8.16.2 Restrictions
An issue that has arisen in recent years is the extent to which individuals may be prevented
from manifesting their religious beliefs either through not being permitted to wear particular
items of clothing or by being required to carry out certain tasks. This has arisen in the context
of what an individual may not wear or may be required to do at work, and the restrictions that
a school may impose on items of clothing worn by its pupils.
The leading case on restrictions that may lawfully be imposed in the workplace is Eweida
and others v United Kingdom (2013) 57 EHRR 8. In this case, four separate applicants
argued that their respective employers had either imposed restrictions on dress or
dismissed them in violation of their rights under Article 9. They had been unsuccessful
before the domestic UK courts.
(a) Eweida
Eweida had been employed by British Airways. She wanted to wear a cross as a
sign of her commitment to the Christian faith. Between September 2006 and February
2007, she was not allowed to remain in her post whilst visibly wearing the cross.
(b) Chaplin
Chaplin was a Christian who had worn a cross since 1971. She had been employed
as a nurse by an NHS trust. Her employer’s uniform policy prohibited the wearing of
necklaces to reduce the risk of injury when handling patients. When she refused to
remove the cross and chain she was wearing, she was moved to a non-nursing post,
which shortly thereafter ceased to exist.
(c) Lavelle
Lavelle had been employed by a local authority as a registrar of births, deaths
and marriages. She was a Christian and believed that same-sex civil partnerships
were contrary to God’s law. She refused to be designated as a registrar of civil
partnerships, which resulted in disciplinary proceedings and the loss of her job.
(d) MacFarlane
MacFarlane, a Christian, had been employed by Relate – a marriage guidance
organisation – which had a policy of requiring staff to provide services equally to
heterosexual and homosexual couples. He refused to commit himself to providing
psycho-sexual counselling to same-sex couples, which resulted in disciplinary
proceedings being brought against him.
The ECtHR considered each application in turn.
(a) Eweida – outcome
The Court found that a fair balance had not been struck. On one side of the argument
was Eweida’s desire to manifest her religious belief. On the other was the employer’s
wish to project a certain corporate image. Whilst the Court accepted that this aim
was legitimate, it said that the domestic courts had accorded it too much weight.
Eweida’s cross was discreet and could not have detracted from her professional
appearance, and there was no evidence that the wearing of other, previously
authorised, items of religious clothing by other employees had had any negative
impact on British Airways’ brand or image. The Court found that the domestic
authorities had failed sufficiently to protect Eweida’s right to manifest her religion, in
breach of their positive obligation under Article 9.
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(b) Chaplin – outcome

The Court found that the reason for asking Chaplin to remove her cross –namely
the protection of health and safety on a hospital ward –was much more important
than the reason given to Eweida. The Court also said that hospital managers were
better placed to make decisions about clinical safety than a court. The measures
were therefore not disproportionate. It followed that the relevant interference with
her freedom to manifest her religion was necessary in a democratic society and that
there had been no breach of Article 9.
(c) Lavelle – outcome
The Court accepted that, given the strength of Lavelle’s religious conviction, she
considered that she had no choice but to face disciplinary action and ultimately
lose her job, rather than be designated a civil partnership registrar. On the other
hand, the local authority’s policy aimed to secure the rights of others, which were
also protected under the Convention. The Court said that national authorities
should be given a wide margin of appreciation when it came to striking a balance
between competing Convention rights. Therefore, the local authority that brought the
disciplinary proceedings and the domestic courts that had rejected Lavelle’s claim
had not violated Article 9.
(d) MacFarlane – outcome
The Court accepted that the loss of his job was a severe sanction with grave
consequences for MacFarlane. However, the most important factor was that the
employer’s action was intended to secure the implementation of its policy of
providing a service without discrimination. The state authorities should be given
a wide margin of appreciation in deciding where to strike the balance between
MacFarlane’s right to manifest his religious belief and the employer’s interest
in securing the rights of others. The refusal by the domestic courts to uphold
MacFarlane’s complaints therefore did not give rise to a breach of Article 9.
The leading case concerning the restrictions that a school may impose on the items of clothing
worn by its pupils is R (Begum) v Governors of Denbigh High School [2006] UKHL 15. In this
case, a schoolgirl called Shabina Begum had been excluded from her school for failure to
comply with her school’s dress code. Begum was Muslim and wished to wear a jilbab to
school, rather than a shalwar kameez as required by the school’s uniform policy. A jilbab is
a more concealing form of dress than a shalwar kameez. She argued that her expulsion was
a violation of her rights under Article 9, because the shalwar kameez did not comply with the
requirements of her religion.
The House of Lords found that there had been no violation of Shabina Begum’s right to
manifest her religious beliefs under Article 9. The Lords said that what constituted interference
depended on all the circumstances of the case, including the extent to which an individual
could reasonably expect to be at liberty to manifest their beliefs in practice.
In this case, Begum’s family had chosen for her a school outside their own catchment area.
There was no evidence to show that there was any difficulty in her attending one of the three
schools in her catchment area that permitted the wearing of the jilbab. Also, Shabina Begum
had worn the shalwar kameez during her first two years at the school without objection. In
addition, the school had taken pains to devise a uniform policy that respected Muslim beliefs
but did so in an inclusive, unthreatening and uncompetitive way. The school had enjoyed a
period of harmony and success to which the uniform policy was thought to contribute, and the
rules were acceptable to mainstream Muslim opinion.
For all these reasons, the House of Lords found that the school had acted in a proportionate
manner, and there had been no unlawful interference with Shabina Begum’s rights.
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8.17 Article 10 –Freedom of expression

8.17.1 Introduction
Article 10(1) of the ECHR gives an individual the right to freedom of expression, which
includes ‘freedom to hold opinions and to receive and impart information and ideas without
interference by public authority’. But, just as with Article 9, Article 10 is a qualified right, and
may therefore be subject to restrictions that are prescribed by law, in pursuit of a legitimate
aim and are proportionate to that aim.
There are several forms that freedom of expression may take. It may, for example, be artistic
in nature, such as the publication of a book that has graphic sexual content, or it may be a
newspaper printing a story about the private life of a celebrity. However, the most important
form of freedom of expression is the expression of views that are political in nature. For
the state to attempt to suppress the expression of political views to which it objects would
be a restriction on a fundamental right. It is no coincidence that one of the hallmarks of a
dictatorial or oppressive state is the crushing of any political dissent.
8.17.2 Qualifications
Although the ECtHR has repeatedly stressed the importance of protecting political free
speech, there are circumstances in which a state may lawfully interfere with the exercise of
this right, particularly where matters of national security are concerned. An example of this
is Observer and The Guardian v United Kingdom (1992) 14 EHRR 153. In this case, various
newspapers complained that the granting of interim injunctions restraining them from
publishing extracts from a book called ‘Spycatcher’ contravened their right to freedom of
expression. The book was written by a former member of the security services, and contained
allegations of unlawful behaviour by the British security service.
The Court was satisfied that the interim injunctions were lawful and in pursuit of the legitimate
aim of national security. In addition, the injunctions were proportionate as they were only
obtained on an interim basis, pending a final hearing to determine whether publication of the
book should be allowed.
8.17.3 Ban on political advertising

A further issue concerning political free speech and Article 10 is the ban on broadcast political
advertising in the UK, as set out in the Communications Act 2003. The compatibility of this ban
with the rights set out in Article 10 was considered by the ECtHR in Animal Defenders v United
Kingdom [2013] ECHR 362.
Animal Defenders campaigned against the use of animals in commerce, science and leisure.
It had wished to broadcast a television advertisement, but the UK’s relevant broadcasting
authority refused to clear it for broadcast as its objectives were political as defined in the
Communications Act. The House of Lords rejected Animal Defender’s argument that this
prohibition breached its Article 10 rights.
It was agreed that the prohibition was an interference with Animal Defender’s Article 10
rights, but that it pursued the legitimate aim of preserving the impartiality of broadcasting and
therefore protected the democratic process. The issue was the measure’s proportionality.
The House of Lords found that the ban on broadcast political advertising had been the
culmination of an extensive consideration by Parliament, having been reported on and
commented on by specialist bodies, and having been enacted with support from all political
parties. Further, a range of alternative media were available to Animal Defenders to
disseminate their views. The ECtHR also found that the ban was a proportionate means of
ensuring that the facts about the perceived exploitation of animals were not distorted. The
Court’s conclusion was that, for all these reasons, the ban was proportionate and did not
violate Article 10.
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8.17.4 Hate speech

Political free speech is given a high degree of protection by the courts. Free speech that is
offensive, shocking or disturbing is also protected by Article 10 and should not be restricted
by the state. But what is the position with speech that goes beyond this and, for example,
expresses racial or religious intolerance?
In Jersild v Denmark (1995) 19 EHRR 1, a Danish journalist conducted a television interview
with some young people, known as ‘green jackets’, who made racist remarks in the course
of the interview. The ECtHR ruled that the expression of outright racist views would not be
protected by Article 10 because such views went beyond what was offensive, shocking or
disturbing.
In the United Kingdom, the Public Order Act of 1986 creates several criminal offences in
connection with racial, religious and sexual hatred. However, criticism of religions is permitted
to a certain extent, because there are wider ethical and moral considerations that might lead
someone to criticise particular religious beliefs.
A particular provision of the Public Order Act has given rise to concern due to its implications
for freedom of expression. This is s 5, which provides that it is a criminal offence for someone
to use threatening or abusive words or behaviour, or to display any writing, sign or other
visible representation that is threatening or abusive, within the hearing or sight of a person
likely to be caused harassment, alarm or distress by such actions. A defendant does have a
defence if they can show that their conduct was reasonable.
Arguments involving whether a conviction for an offence under s 5 may be in violation of the
right to freedom of expression have come before domestic courts on several occasions.
In Percy v DPP [2001] EWHC Admin 1125, Percy –who was a protester against American
military policy –appealed against her conviction for an offence under s 5. Percy had defaced
an American flag, putting a stripe across the stars and writing the words ‘Stop Star Wars’
across the stripes. Then, while outside an American airbase, she stepped in front of a vehicle
containing American service personnel, put the flag on the road and trod upon it. At her
trial, the judge found that the restrictions on Percy’s freedom of expression resulting from her
conviction were necessary and proportionate.
The Divisional Court found, however, that her conviction had not been compatible with her
right to freedom of expression. The fact that Percy could have demonstrated her message by
means other than defacing the flag was a factor to be taken into account but only one of a
number of factors. The Court said that other relevant considerations in similar cases included:
• whether the behaviour had gone beyond legitimate protest;
• whether the behaviour had been part of an open expression on an issue of public interest
but had been disproportionate and unreasonable;
• whether the individual could have expressed their views in another way;
• the knowledge of the individual of the likely effect of their conduct upon those who
witnessed it; and
• whether the use of any object –in this instance a flag –had no relevance to the
conveying of the message of protest and had been used as a gratuitous and calculated
insult.
The case of Norwood v United Kingdom (Admissibility) (23131/03) (2005) 40 EHRR SE11 is
a good illustration of the ECtHR’s approach to hate speech. Norwood was convicted for
an offence of causing alarm or distress under s 5. Norwood was a regional organiser of
the British National Party who had had visibly displayed a poster on the window of his flat
bearing the words ‘Islam out of Britain’, with graphic references to the attacks on the World
Trade Centre on 11 September 2001.
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After being convicted in the UK, Norwood applied to the ECtHR, but his application was
rejected because the views he sought to express were aimed at undermining others and were
therefore incompatible with the values that underpinned the ECHR, such as tolerance, respect
and non-discrimination.
8.18 Article 11 –Freedom of assembly and association

Article 11 of the ECHR gives a right of peaceful assembly, and the separate right of freedom
of association. The effective exercise of these freedoms is of crucial importance for free
expression and for protection of groups of a social, cultural, political and economic nature.
Conduct will fall within scope of Article 11 provided two conditions are satisfied. Firstly, the
conduct must constitute ‘peaceful assembly’. This covers ‘both private meetings, meetings
on public highways, as well as static meetings and public processions’. Article 11 does not,
however, afford protection to violent behaviour.
8.18.1 Freedom of assembly

In Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, the appellant
(Tabernacle) appealed against a decision refusing to quash a byelaw that prevented
Tabernacle from camping in the vicinity of the Atomic Weapons Establishment at
Aldermaston. The camp had been going for 23 years, with the women assembling on the
land for the second weekend of every month. They held vigils, meetings and demonstrations
and the protest was always peaceful. The Secretary of State passed byelaws in 2007 that
prohibited camping in the ‘Controlled Areas’, which included the area where the peace
camp had always been held.
The Court of Appeal held that the byelaw’s interference with Tabernacle’s rights was far from
being weak or insubstantial and the Secretary of State had to demonstrate under Article 10(2)
a substantial objective justification for the particular byelaw, amounting to a pressing social
need. In the circumstances, the effect of the 2007 Byelaws was to violate Tabernacle’s rights of
free expression and association guaranteed by Articles 10 and 11.
Often, as in this case, the two rights are interlinked. The judge regarded Article 11 not as an
autonomous claim in its own right, but as underlining the mode of free expression relied on –
a communal protest in a camp.
Article 11 does create a positive right to freedom of assembly, and this might suggest that the
police should protect those trying to hold a lawful meeting. The ECtHR has said that the state
may infringe freedom of assembly if it does not take positive measures to protect the exercise
of the right and to protect protesters from those wishing to stop their protest or attack them
(Plattform ‘Artze fur das Leben’ v Austria (1991) 13 EHRR 204). However, the state is not subject
to an absolute obligation to facilitate peaceful protest, so it may be lawful for the authorities
to restrict a protest if it is provoking, or is likely to provoke, others to respond violently.
8.18.2 Freedom of association

Article 11 does not merely contain the right to freedom of assembly. It also covers the right
to freedom of association. Article 11(1) provides that ‘Everyone has the right to … freedom of
association with others’. What does this mean?
The right to freedom of association is designed to protect an individual’s right to participate
with other people in an organised way in pursuit of a common aim. It applies to a wide
variety of bodies, including pressure groups, political parties and religious organisations. In
the absence of the right to freedom of association, the state could ban those groups of which
it does not approve, such as opposition political parties or movements.
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Article 11 is, however, qualified. As with the other qualified rights you have considered, the state
may lawfully limit the exercise of the right to freedom of association provided that limitation is
prescribed by law, is in pursuit of a legitimate aim, and is proportionate to that aim.
There are occasions on which a state has sought to proscribe particular political parties or
associations. Proscription means simply that a party or association is banned.
The ECtHR first considered the proscription of political parties in the United Communist Party
of Turkey v Turkey (1998) 26 EHRR 121. The United Communist Party of Turkey was formed in
1990. Turkish law required that all new political parties had to have rules, aims and a political
programme that was compatible with the country’s constitution. The authorities in Turkey
applied to the country’s constitutional court to have the United Communist Party dissolved. It
was alleged that the Party had violated the Turkish constitution by having incorporated the
word ‘communist’ into its name, and by having carried on activities likely to undermine the
territorial integrity of the state, through advocating the establishment of a separate Kurdish
nation. In July 1991, the constitutional court made an order dissolving the Party, based on
the inclusion in its name of the constitutionally prohibited word ‘communist’ and the alleged
encouragement of Kurdish separatism. The Party and its leaders applied to the ECtHR,
complaining that the dissolution of the party infringed their right to freedom of association as
guaranteed by Article 11.
The Court found that the dissolution of the Party was permitted under Turkish law and
arguably had a legitimate aim –national security. However the Court found the ban to
be disproportionate. The Court said that political parties had an essential role in ensuring
pluralism and the proper functioning of democracy, and Article 11 therefore had to be viewed
in the light of the protection of freedom of expression as guaranteed by Article 10.
The Court held that a political party’s choice of name could not justify its dissolution in the
absence of other relevant and sufficient circumstances, and there was no evidence that the
United Communist Party represented a real threat to Turkish society or to the Turkish state.
Also, a detailed reading of the Party’s programme showed that it intended to resolve the
Kurdish issue through dialogue, not violence.
The Court accordingly concluded that the drastic measure of dissolving the Party breached
Article 11.
In 2003, the European Court considered another Turkish case that involved freedom of
association. The case, Refah Partisi (the Welfare Party) v Turkey (2003) 37 EHRR 1, was very
controversial.
Refah Partisi was a political party set up in 1983. By 1996, it was able to form a government in
coalition with another party and its leader was Prime Minister. In 1997, Turkey’s state counsel
successfully applied to the country’s constitutional court for the dissolution of Refah Partisi,
on the ground that its activities were contrary to the principle of the separation of the state
from religious institutions as set out in the Turkish constitution, and also because some of its
members had called for the establishment of an Islamic state and the imposition of sharia
law in Turkey. Refah Partisi applied to the European Court of Human Rights, arguing that the
interference with its rights under Article 11 had been violated.
The Court found that the dissolution of the Refah Partisi did not violate Article 11. Although
there had been an interference with the party members’ rights under Article 11, this was
justified as it met the urgent need to protect democracy, for which purpose the state could
take pre-emptive steps where necessary. Refah Partisi’s commitment to implement the strict
requirements of Muslim sharia law was not compatible with Turkey’s secular democracy. The
Court said that the model of society and government that Refah Partisi wished to introduce
would undermine the very basis on which the ECHR rested.
The fact that Refah Partisi could have gone on to implement those policies in government
meant that it posed an immediate danger to Turkish democracy. Given the nature and
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immediacy of the threat, the actions of the Turkish Constitutional Court in dissolving the Party
were proportionate.
8.19 Article 12 –The right to marry

Article 12 protects the right of men and women of marriageable age to marry and to start a
family.
8.19.1 Scope
The ECtHR ruled in 2002 that the right extends to transsexual people (Goodwin v United
Kingdom (2002) 35 EHRR 18). The ECtHR has, however, held that Article 12 does not require
the state to recognise same-sex marriages (Chapin and Charpentier v France [2016]
ECHR 504).
8.19.2 Restrictions to this right

The right to marry is subject to national laws on marriage, including those that make marriage
illegal between certain types of people (for example, close relatives),
Although the Government is able to restrict the right to marry, any restrictions must not be
arbitrary and not interfere with the essential principle of the right. Thus, The ECtHR held in B v
United Kingdom (2004) 39 EHRR SE19 that, in prohibiting the marriage of a father-in-law to a
daughter-in-law, the Marriage Act 1949 violated Article 12. The Marriage Act was accordingly
amended.
8.20 Article 13 –The right to an effective remedy

Article 13 provides for the right for an effective remedy before national authorities for
violations of rights under the Convention.
8.21 Article 14 –Protection from discrimination

Article 14 requires that all of the rights and freedoms set out in the ECHR must be protected
and applied without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status.
The protection against discrimination in the ECHR is not ‘free-standing’. To rely on this right, a
victim must show that the discrimination has affected their enjoyment of one or more of the
other rights in the Convention.
Article 14 covers both direct and indirect discrimination.
8.22 Article 1 of the First Protocol –Protection of property

8.22.1 Introduction
This Article guarantees the right to peaceful enjoyment of possessions (both land (realty) and
personal property).
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‘Peaceful enjoyment’ of property would, on its face, suggest that it covers a wide range
of situations. However, only interference that affects the financial value of property or
possessions will engage the right to ‘peaceful enjoyment’ of them. Thus, for example, noise
nuisance will only interfere with peaceful enjoyment to the extent that it reduces the value of
that property.
8.22.2 Restrictions
There are some situations in which public authorities can deprive people of their property or
restrict the way they can use them. This is only possible where the authority can show that
its action is lawful and necessary for the public interest. Generally speaking, a ‘deprivation
of property’ under this Article will not be considered to be in the public interest unless the
owner receives compensation. The state must strike a fair balance between the interests of a
property owner and the general interests of society as a whole.
Accordingly, a public authority wanting to use a compulsory purchase order to acquire
property for public purposes must strike a fair balance between the rights of the individual
property owners and the rights of the community. A crucial factor in any such balance will
be the availability of compensation reflecting the value of the property being compulsorily
purchased.
This right does not affect the ability of public authorities to enforce taxes or fines.
8.23 Article 2 of the First Protocol –The right to education

8.23.1 Introduction
Article 2 Protocol 1 provides: ‘No person shall be denied the right to education. In the exercise
of any functions which it assumes in relation to education and teaching, the state shall respect
the rights of parents to ensure such education and teaching in conformity with their own
religious and philosophical convictions. ’
The leading case on the right to education is Belgian Linguistic (1968) 1 EHRR 252 in which the
ECtHR stated that the rights protected in Article 2 of Protocol 1 are:
• a right to access to educational institutions existing at a given time. It does not require the
Government to provide or subsidise any particular type of education.
• a right to official recognition of the studies a student has successfully completed;
Schools are allowed to use admission policies so long as they are objective and reasonable.
As the Article itself indicates, parents have a right to ensure their religious or philosophical
beliefs are respected during their children’s education. However, this is not an absolute
guarantee and states may determine the content of their school curriculums, provided they
are consistent with requirements of objectivity and pluralism and respect the parents’ different
religious and philosophical convictions.
8.22.2 Exclusions
Pupils who have been excluded from schools for disruptive behaviour have invoked this
right, but usually without success, as the right is subject to limitations. In Ali v United Kingdom
(2011) ECHR 17 the ECtHR held that the right did not preclude disciplinary measures such
as expulsion or temporary exclusion, though to be lawful any such measures had to be
foreseeable, had to pursue a legitimate aim and had to be proportionate to that aim. In
determining whether an exclusion resulted in a denial of the right to education, the court
would have to consider whether a fair balance had been struck between the exclusion and
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the justification for it. However, where an exclusion from a school is permanent, it is likely that
states should ensure that pupils of school-going age receive education at another school.
8.24 Article 3 of the First Protocol –The right to free elections

Article 3 of Protocol 1 requires states to hold free elections at reasonable intervals by way of
secret ballot.
The right to free elections is absolute, so it cannot be restricted in any way. However,
governments have a wide margin of appreciation, and can decide what kind of electoral
system to adopt –such as ‘first past the post’, as in UK general elections, or proportional
representation.
Prisoners serving a custodial sentence in the UK do not have the right to vote. The ECtHR
ruled in Hirst v UK (No 2) (2005) ECHR 681 that a blanket ban on all serving prisoners was
not compatible with Article 3 of Protocol 1. Eventually, the UK Government agreed to allow
prisoners who are released on temporary licence or on home detention curfew to vote (this
did not require a change in legislation). The Council of Europe in December 2018 accepted
that this is sufficient to comply with the ECtHR’s judgment.
8.25 Article 1 of Protocol 13 –Abolition of the death penalty

This provides that the death penalty shall be abolished. This includes crimes committed during
a war or when the threat of war is imminent. The UK ratified this Protocol in 2002.
Summary
In this chapter you have examined the rights and freedoms guaranteed by the ECHR and how
individuals can rely on them in practice.
• You examined how cases can reach the European Court of Human Rights, either through
state action or individual petition.
• You then considered absolute, limited and qualified rights.
• Absolute rights are rights that cannot be limited or interfered with under any
circumstances, even if strong public interest arguments were to exist. Article 2, the right to
life, is an absolute right. However, there are exceptions that define its scope and if one
of the exceptions exists, then there is no interference with this right. For example, if the
police kill an armed person to prevent the murder of innocent people, then Article 2 is not
engaged provided the police have used no more force than absolutely necessary.
• Limited rights can be restricted in certain circumstances as specified in the relevant Article
of the ECHR. For example, Article 5, the right to liberty and security of the person, can
be limited if a person is convicted and sentenced to prison. They are similar to absolute
rights in the sense that, unlike qualified rights, they cannot be ‘balanced’ against the
rights of other individuals or the public interest.
• Qualified rights may be interfered with in order to protect the rights of another or the
wider public interest, eg Article 8, the right to private and family life. For example
the state can interfere with a person’s private life on grounds of national security
provided the interference is prescribed by law, necessary in a democratic society and
proportionate. UK courts use the text in the Bank Mellat case to evaluate proportionality.
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Sample questions
Question 1
The Waste Management Act 2015 (fictitious) established the Waste Disposal Commission
to decide where incinerators to dispose of household waste shall be built in England and
Wales. A woman has objected to a decision made by the Commission approving the
building of an incinerator 200 metres from her home. Her main ground of objection is that
emissions will harm her and other people living nearby. Experts had produced evidence
to the Commission that there were other suitable sites in the locality further away from
people’s houses.
Which of the following best describes whether the building of the incinerator breaches
any of the woman’s Convention rights?
A The building of the incinerator does not engage any Convention rights as it is in the
public interest.
B Although the building of the incinerator engages the woman’s right to a private life, it is
a proportionate interference in the public interest.
C Although the building of the incinerator engages the woman’s right to a private life, it is
prescribed by law and so cannot be challenged.
D Although the building of the incinerator is in the public interest, it is a disproportionate
interference with the woman’s right to a private life.
E The building of the incinerator is not prescribed by law and is a disproportionate
interference with the woman’s right to a private life.
Answer
Option D is correct. The woman may be able to argue that her Article 8 right (right to a
private life) is being breached; accordingly option A is wrong as Article 8 is engaged.
However, Article 8 is a qualified right. The qualification has a legal basis here –the Waste
Management Act 2015; hence option E is wrong. The legitimate aim(s) being pursued by
the Act are likely to be the ‘economic well-being of the country’. However, the qualification
must also be ‘necessary in a democratic society’. Option C is therefore wrong because it
incorrectly suggests that it is sufficient if the interference is prescribed by law.
As the qualification has a legal basis and the 2015 Act is pursuing a legitimate aim,
it is necessary to apply the proportionality test. In other words, is the interference with
the woman’s rights proportionate to the objective being achieved, or would any lesser
interference be possible? In this case, it seems likely that there are more suitable sites for
the incinerator, away from residential areas. Option B is therefore wrong because it states
the interference is proportionate.
Question 2
A country that is not a signatory to the European Convention on Human Rights (‘the
Convention’) has asked the UK Government to extradite a woman living in the UK to
stand trial for murder in that country. The woman holds the nationality of the country
requesting her extradition, but not of any other country. The Secretary of State has ordered
the woman’s extradition and the woman has appealed to the High Court against the
extradition order. During the hearing she produces evidence that she could face the death
penalty if extradited and the High Court accepts the woman’s evidence.
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Which of the following best explains whether the High Court would uphold the
extradition order?
A It would not uphold the order because the Convention prohibits extradition to non-
signatory countries.
B It would not uphold the order because extraditing a person to stand trial for an offence
that could result in the imposition of the death penalty would violate that person’s
Convention rights.
C It would not uphold the order because extraditing a person to stand trial for an offence
that could result in the imposition of the death penalty fails to strike a fair balance
between the rights of the individual and the interests of the community.
D It would uphold the order because it is not certain that the death penalty would be
imposed on the woman if she was extradited.
E It would uphold the order because the Convention only protects the rights of people
who hold the nationality of a state that has signed the Convention.
Answer
Option B is correct. Extraditing a person to a country where they could face the penalty
would breach Article 2 (right to life) and probably also of Article 3 of the Convention
(prohibition of torture) (Soering (8.8.2 above) and Article 1 of the 13th Protocol (abolition
of the death penalty) (8.25 above)). Option A is wrong because the Convention does not
prohibit extradition to non-signatory countries, whilst option C is wrong as the right to life
and prohibition of torture are absolute rights and, unlike qualified rights, do not involve a
balancing act between the rights of the individual and the interest of the community. Option
D is wrong as it is sufficient to engage Articles 2 and 3 if there is a possibility of the death
penalty being imposed, whilst option E is wrong as the Convention covers nationals of non-
signatory states resident in signatory states.
Question 3
A man employed as a shop assistant in a clothing shop has a small fish symbol tattooed
on to his hand. The fish symbol is a Christian symbol. The clothing shop’s employment
policy permits shop assistants to have small tattoos that are visible to customers, but
prohibits tattoos that have religious significance as it wants to adopt a secular image.
The shop has taken disciplinary action against the man. The UK courts have upheld the
lawfulness of the disciplinary action, so the man now wants to take action against the UK
Government before the European Court of Human Rights.
Can the man argue that the disciplinary action breaches his Convention rights?
A Yes, because the shop’s refusal to allow him to display a small tattoo means that
the state has permitted a disproportionate interference with his right to manifest his
religion.
B Yes, because the shop’s refusal to allow him to display a small tattoo means that the
state has permitted an interference with his absolute right to manifest his religion.
C Yes, because the shop’s refusal to allow him to display a small tattoo means that the
state has permitted an interference with his absolute right to freedom of religion.
D No, because the shop has treated all religious symbols equally, so there is no
interference with the man’s freedom to manifest his religion.
E No, because the shop’s refusal to allow him to display a small tattoo is a proportionate
interference with the man’s freedom to manifest his religion.
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Answer
Option A is correct. Based on the case of Eweida (8.16.2), it seems improbable that a small
discreet religious symbol would detract from the image that the shop wants to project. It is
therefore a disproportionate interference with the man’s qualified right to manifest his religious
belief. Option B is wrong because the right to manifest a religious belief is a qualified right,
not an absolute right. Option C is wrong because having a tattoo comes within the scope
of manifesting religious belief, a qualified right, rather than holding a religious belief, an
absolute right.
Option D is wrong because treating all religions the same does not mean that the right
to manifest one’s religion fails to be engaged. Option E is wrong as the interference with
the man’s right to manifest his religion seems to go further than necessary to maintain the
shop’s image.
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9 Human Rights Act 1998:
European Convention on
Human Rights in the UK
9.1 The Human Rights Act 1998 190
9.2 Convention rights in the UK 192
9.3 ‘Horizontal effect’ of Convention rights 195
9.4 Conflict between different rights and freedoms 195
SQE1 syllabus
• the HRA 1998 and the ECHR;
• Schedule 1 of the HRA 1998: the ‘Convention Rights’; and
• sections 2, 3, 4, 6, 7, 8 and 10 of the HRA 1998.
purposes only.
Learning outcomes
• appreciate the pervasive nature of the key provisions of the ECHR through its
incorporation into UK law by the HRA 1998;
• understand how the HRA 1998 has incorporated the ECHR into UK law;
• understand the inter-relationship between different rights and freedoms, in
particular Articles 8 and 10 of the ECHR;
• understand how to strike an appropriate balance in the legal protection when the
different rights and freedoms conflict with each other; and
• apply case law pertaining to the HRA 1998 to the facts of a scenario.
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9.1 The Human Rights Act 1998

In Chapter 2 you read about the HRA 1998 from the perspective of its effect on the doctrine of
parliamentary sovereignty. In this chapter, we look at a different issue –how incorporation has
altered the way in which English law deals with disputes between the individual and the state.
9.1.1 An overview of the act

The main sections of the HRA 1998 (many of which have been discussed in Chapter 2) are as
follows:
• Section 1 –incorporates and gives effect to the Convention rights that are set out in
Schedule 1 of the HRA 1998. These are rights contained in the ECHR save for Article
1 (states must secure the rights granted by the ECHR within their own jurisdiction) and
Article 13 (the right to an effective remedy) on the basis that the HRA 1998 itself secures
those rights and provides an effective remedy for their breach.
• Section 2 –domestic courts must ‘take into account’ judgments of the ECtHR but are not
bound to follow them.
• Section 3 –‘So far as it is possible to do so, primary and subordinate legislation must be
read and given effect in a way that is compatible with the Convention rights.’ This applies
to past and future legislation.
• Section 4 –the High Court and higher courts may declare an Act of Parliament to be
incompatible with Convention rights.
• Section 6 –it is unlawful for a public authority (including a ‘court’) to act in a way that is
incompatible with Convention rights (unless giving effect to an incompatible statute). This
affects grounds of challenge in judicial review of administrative acts.
• Section 7 –a person who claims that a public authority acted contrary to s 6 may
‘bring proceedings against the authority’ or ‘rely on the Convention right … in any legal
proceedings’. The person must be a ‘victim of the unlawful act’.
• Section 8 –that a court in civil proceedings may award damages where a public authority
unlawfully infringes a Convention right, if it is necessary ‘to afford just satisfaction’ to the
injured party.
• Section 10 –creates a ‘fast-track’ procedure for changing legislation. Where a UK court
or the ECtHR has found UK legislation to be in breach of the Convention, the Government
may, if there are ‘compelling reasons’ to do so, make a ‘remedial order’ changing UK law.
This is delegated legislation that has to be approved by Parliament under the ‘affirmative
procedure’.
• Section 19 –a minister introducing future legislation must make a written statement stating
that the bill is compatible with Convention rights (a ‘statement of compatibility’) or that,
although they are unable to make a statement of compatibility, the Government wishes to
proceed with the bill.
9.1.2 Method of incorporation of Convention rights and interpretation of domestic legislation

In Chapter 2 you were introduced to ss 2 and 3 of the HRA 1998, which deal with how
the courts must interpret Convention rights and domestic legislation. Please refer back to
Chapter 2 for more detail on this topic.
9.1.3 Declaration of incompatibility

As we have noted above, s 3 of the HRA 1998 requires UK courts to interpret UK legislation
consistently with the Convention only ‘so far as it is possible to do so’. Section 4(2) gives
the High Court and higher courts the power to declare legislation to be incompatible with
Convention rights. Such a declaration does not affect the validity, continuing operation or
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Human Rights Act 1998: European Convention on Human Rights in the UK
enforcement of the provision in question, and does not bind the parties to the proceedings (s
4(6)). However, it does put political pressure on the Government to change the law.
9.1.4 Remedial orders

The Government is under no obligation to act upon a declaration of incompatibility. However,
if it chooses to act upon it, the HRA 1998, s 10 and Sch 2 enable it to make delegated
legislation to remedy the breach of the ECHR identified by the declaration (or a finding of
the ECtHR). It may make ‘remedial orders’, which amend or repeal the offending legislation.
However, remedial orders cannot be used to change the common law. Alternatively, the
Government may submit a bill to Parliament to amend or repeal the offending legislation.
9.1.5 Acts of public authorities

As well as making the ECHR a yardstick against which to measure UK legislation, the HRA
1998 also makes Convention rights a standard with which the actions of public authorities must
comply. Section 6(1) of the HRA 1998 provides that it is unlawful for a public authority to act in
a way that is incompatible with Convention rights. However, this does not apply if, as a result
of an Act of Parliament, the authority could not have acted differently, or the authority is giving
effect to, or enforcing, provisions of an Act that are incompatible with the Convention (s 6(2)).
Therefore, s 6 is particularly relevant in judicial review cases, as in effect it adds a ground of
challenge in judicial review of administrative acts –breach of a Convention right.
The Court of Appeal, in the case of R (Beer) v Hampshire Farmers Market Ltd [2004] 1
WLR 233, held that the two terms, ‘public body’ and ‘public authority’ are synonymous. In
other words, if a decision-maker is a public body under the traditional principles of judicial
review then it will also be a ‘public authority’ for the purposes of a decision that breaches
a Convention right. This, of course, is extremely helpful to the claimant who wishes to raise
traditional grounds for review alongside an allegation of breach of a Convention right.
You examined some judicial review cases involving Convention rights in earlier chapters. For
example, the case of R (Anderson) v Secretary of State for the Home Department was covered
in both Chapters 4 and 8. Anderson applied for judicial review of the Home Secretary’s
decision to increase the judicially recommended tariff setting the minimum period he would
serve in prison after his conviction for murder. The House of Lords issued a declaration of
incompatibility pursuant to s 4 of the HRA 1998 that the legislation authorising the Home
Secretary was incompatible.
The case of R (Swami Suryananda) v Welsh Ministers (8.14.2) is also an example of a judicial
review case, albeit an unsuccessful one. The Hindu community had applied for judicial review
of the decision by Welsh ministers to slaughter a bullock belonging to the community to stop
the spread of bovine tuberculosis. Although the court accepted the community’s Article 9 rights
(freedom of religion) were engaged, the slaughter was a proportionate response to a serious
situation.
9.1.6 Enforcement against private individuals

Notice that the HRA 1998 only makes it unlawful for public authorities to infringe Convention
rights. It does not expressly make it unlawful for private individuals to infringe the rights of
other individuals. Does this mean that cases between individuals are unaffected by the ECHR?
For example, can the right to respect for private life given by Article 8 be used only against
public authorities? What about cases where the press intrudes on the private life of celebrities?
Later in this chapter, you will consider these issues further. However, you should note that the
court is a public authority within the meaning of s 6 of the HRA 1998 (see 9.1.5. above). It
therefore has a duty to apply the Convention. The effect is referred to as ‘horizontality’, as it
means that Convention rights can affect relations between private citizens (or companies) and
not merely relations between state and citizen (‘vertical effect’).
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9.1.7 Section 6 and delegated legislation

Although courts are bound to apply Acts of Parliament that are incompatible with Convention
rights, judicial review may be available under s 6 of the HRA 1998 to set aside incompatible
delegated legislation. For example, as you saw in Chapter 2, in A v Secretary of State for the
Home Department, the House of Lords quashed delegated legislation made under s 14 of the
HRA 1998.
9.1.8 Standing
Section 7 of the HRA 1998 states that a claimant can bring proceedings for breach of a
Convention right only if they are a ‘victim’ of the breach. This means that an individual or
organisation must be directly and personally affected. Pressure groups will not be victims
under s 7 and therefore cannot bring claims for breach of Convention rights (R (Adath Yisroel
Burial Society) v HM Coroner for Inner North London [2018] EWHC 969 (Admin)).
9.1.9 Damages for breach of Convention rights

Under s 8 of the HRA 1998, a court can award damages for breach of Convention rights
where it is ‘necessary to afford just satisfaction’, taking into account principles laid down by
the ECtHR. In many cases there will be no need to do so, as there will be a common law
cause of action (eg misuse of private information) under which damages can be awarded.
Moreover, in judicial review proceedings the courts will often regard a quashing order and/or
one or more of the other available remedies as just satisfaction.
9.2 Convention rights in the UK

Chapter 8 covered the rights and freedoms granted by the ECHR. You looked at the approach
of the ECtHR and UK courts in cases involving alleged breaches of these rights, including the
application of the ‘proportionality’ test by UK courts. Most of the examples you considered in
Chapter 8 involved interferences by the state with individuals’ Convention rights. In this part
of the chapter, you will be looking at situations where conflict can arise between different
Convention rights, focusing in particular on Articles 8 and 10. However, before you do so, we
shall analyse how Convention rights can be used in judicial review proceedings against public
bodies.
9.2.1 Enforcement against public bodies

The following example exercise illustrates how Convention rights and the traditional judicial
review grounds can be used to challenge a decision of a public body.
Example
Assume that, owing to concerns regarding misleading information and the leaking of
confidential statistical information on Internet sites about school performance league
tables, Parliament passed the Electronic Communications Act 2018 (‘the Act’) (fictitious),
which empowers the Government, by way of order (a ‘restriction order’), to restrict the
dissemination on Internet sites of any matters that may be specified in such an order.
A series of recent Internet articles has also alleged that the poor performance in the
Government’s league tables of inner-city schools is due to weak leadership by the
relevant head teachers. In response to this, the Home Secretary issues a restriction order
banning publication on the Internet of any information relating to the performance of
schools. The Home Secretary believes that the widespread publication of information may
embarrass the Secretary of State for Education and may undermine the confidence of the
public in its local head teachers.
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The Parent and Teachers Forum (PTF) represents a large number of interested parents.
The PTF is prepared to fund a test case brought by Janice, an aggrieved parent, to
challenge the new restriction order on the basis that it unduly restricts parents’ rights of
access to information of genuine public interest.
Consider whether Janice may bring a judicial review claim based on:
(i) breach of her Convention rights, and (ii) any traditional grounds of review.
Answer
1. Is the issue a public matter?
Yes, performance of schools is a public matter.
2. Who is the decision-maker?
The Home Secretary.
3. Is the Home Secretary amenable to judicial review?
Apply the two-part Datafin test: if the source of power is statute or a prerogative power,
the decision-maker is amenable to judicial review. Here, the source of power is the
Electronic Communications Act 2018, so there is no need to go on to consider the second
part of the test.
The Home Secretary is also a ‘public authority’ for the purposes of s 6 of the HRA 1998.
4. Are there any ouster clauses, either complete or partial?
No, neither.
5. Does Janice have standing?
Yes, because she is an aggrieved parent who fears that her child(ren)’s education might
suffer as a result of the restriction order. She therefore qualifies as a victim as required by
s 7 of the HRA 1998, and clearly has ‘sufficient interest’ (the test for the domestic grounds).
6. ECHR grounds:
(a) Janice’s challenge is likely to involve human rights issues (see below). As already
stated, Janice will satisfy the victim test under s 7 of the HRA 1998.
(b) Janice may argue that her Convention rights have been infringed by the Home
Secretary’s order. Under s 6 of the HRA 1998, she may raise a human rights issue
as part of her claim for judicial review on the basis that it is unlawful for a public
authority to act in a way that is incompatible with Convention rights.
(c) The most relevant article here is Article 10 (freedom of expression). Article 10(1)
includes ‘the right to receive … information … without interference by public
authority …’.
Article 10(2) permits restrictions that are ‘prescribed by law’, pursue a legitimate aim
and are ‘necessary in a democratic society’. This is where proportionality becomes
relevant: following Bank Mellat, the court would apply the four-stage approach
outlined below, asking:
(i) whether the objective of the restriction order is sufficiently important to justify
limiting a fundamental right;
(ii) whether the restriction order is rationally connected to this objective;
(iii) whether a less intrusive measure than the restriction order could have been
used; and
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(iv) whether, having regard to these matters and to the severity of the consequences,
a fair balance has been struck between the rights of the individual and the
interests of the community.
The measures taken by the Home Secretary, ie the restriction order, are prescribed by law
‘(the Act’) and are in pursuit of the legitimate aims listed in Article 10(2) –the protection
of the reputation or rights of others and the prevention of disclosure of information
received in confidence.
Are the measures ‘necessary in a democratic society’ (ie proportionate)? At first sight,
they derive from Parliament’s legislative objective as expressed in the parent Act. That
objective is arguably sufficiently important (ie protecting the public from misinformation)
to justify the interference with a fundamental right, and the measures taken (the making
of the restriction order) are rationally connected to this objective if the Home Secretary
believes that he is acting in the interests of regulating publication on the Internet.
However, the order itself extends beyond these issues. Making the order (even partly)
to prevent embarrassment to another minister is, Janice would argue, not rationally
connected with the objective (‘protection of the reputation of others’ seems very tenuous
when just talking about embarrassment!).
In any event, the means used appear to be more intrusive than necessary (ie
disproportionate), banning all information relating to the performance of schools.
Given the above and the fact that the ban will mean parents have no access to any
information on the performance of schools, the rights of the parents may well outweigh
the interests of the community in such a ban.
Anther ground on which Janice would be able to base her claim is:
Illegality
All statutory powers must be exercised in accordance with the correct statutory purpose.
Here the legislation has been passed due to a need to regulate publication of material
on the Internet.
The Home Secretary has used the power in order to limit publication of material that may
undermine public confidence in head teachers, and also to prevent embarrassment to a
government minister. If the latter is actually the real reason for exercise of the statutory
power, it might be possible to argue that it has been exercised for an improper purpose
(Congreve v Home Office).
However, it seems more likely that the Home Secretary has in fact sought to achieve two
purposes. Where there is a duality of purpose behind the order, the court would need to
apply the primary (or ‘true and dominant’) purpose test to evaluate which was the main
objective, ie the one authorised by statute or not (Westminster Corp v LNWR). Alternatively,
the court may adopt the more ‘modern’ approach in R v ILEA, ex p Westminster City
Council: if the unauthorised purpose ‘materially influenced’ the creation of the order then
the order itself would be ultra vires. It seems that if the Home Secretary’s concerns are to
prevent embarrassment to the Secretary of State for Education, the unauthorised purpose
may well have materially influenced his decision to make the order. Further, this concern is
also an irrelevant consideration (Padfield v Minister of Agriculture).
9.2.2 Private enforcement

The rise of the ‘celebrity culture’ has led to the ability of a newspaper or magazine to achieve
a wide circulation through use of an exclusive photograph of a celebrity on its front page,
often taken by a member of the paparazzi. As a result, the courts have had to consider the
extent to which an individual’s right under Article 8 of the ECHR, to respect for their private
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life, should be protected. This is particularly so where that right conflicts with another’s (eg a
newspaper’s) right to freedom of expression under Article 10.
By analysing the approach taken by the UK courts in these cases, you should be able to
assess how the courts will strike a balance when different individuals’ rights compete with
each other.
9.3 ‘Horizontal effect’ of Convention rights

In the English cases you will study in the rest of this chapter, the defendants will be private
bodies, often a newspaper, and not ‘public authorities’ for the purposes of s 6 of the HRA
1998. However, individuals have nevertheless been able to bring a claim against such bodies
under the ‘horizontal effect’ principle as developed in cases such as Thompson and Venables
v MGN and Douglas v Hello! Ltd (see below). Courts themselves are public authorities within
the scope of s 6(3) HRA 1998 and so must act compatibly with Convention rights (s 6(1) HRA
1998). This principle allows individuals to bring a case based on an existing cause of action,
which the courts will develop compatibly with Convention rights. In particular, the courts have
developed the law on confidential information to give effect to Convention rights in horizontal
claims.
9.4 Conflict between different rights and freedoms

One difficulty in setting out a list of fundamental rights is that sometimes rights can conflict
with each other. The ECHR does not lay down any strict hierarchy of rights, and therefore
the courts have to determine priority on a case-by-case basis. The case of Venables and
Thompson v News Group Newspapers Ltd [2001] 2 WLR 1038 involved the right to life (Article
2), the right to respect for private life (Article 8) and also the right to freedom of expression
(Article 10) of newspaper publishers.
The claimants, Venables and Thompson who at the age of 11 had been convicted of the
murder of toddler James Bulger, applied for permanent injunctions protecting them from
being identified upon their release from detention as there was a genuine risk that they
would be subjected to revenge attacks. They relied on Articles 2 (right to life), 3 (prohibition
of torture) and 8 (right to a private life) of the ECHR to claim that their identities should be
kept confidential. For their part, various newspapers contended that such restrictions would
interfere with their Article 10 rights (freedom of expression).
Article 2 is an absolute right, whereas Articles 8 and 10 are qualified rights. Subject to context,
one would expect the absolute right to life to prevail; however, there was argument over the
scope of the right to life. The court held that it was under a positive duty to operate to protect
individuals from the criminal acts of others. In exceptional cases, such as this, the court had
jurisdiction to widen the scope of the protection of confidentiality of information, even to the
extent of placing restrictions on the press, where in the absence of restrictions it was likely that
the person seeking confidentiality would suffer serious physical injury or even death and no other
means of protection was available. The court acknowledged that restrictions on the right of the
media to publish had to fall within the exceptions contained in Article 10(2), and those exceptions
had to be given a narrow interpretation. Whilst the court was not convinced that it was necessary
to override the press’s Article 10 rights by keeping details of the claimants’ identities secret in
order to protect their Article 8 rights, there was a real and serious risk to their rights under Articles
2 and 3. The court therefore granted permanent injunctions against the whole world.
Contrast this with the case of Mary Bell (X (A Woman formerly known as Mary Bell) and Y v
Stephen O’Brien and News Group Newspapers and MGN Limited [2003] EWHC 1101 (QB)).
In 1968, when she was 11 years old, Mary Bell was convicted of the manslaughter of two
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children and sentenced to detention for life. During the trial, her name was made public. On
her release in 1980 she was given a new identity, which had subsequently been discovered
five times. She had a daughter, Y, who was 19 at the time of this hearing. This case concerned
X and Y seeking lifetime injunctions to protect their identities. Here it was held that, in contrast
to the Venables case, the risk of harm to X (formerly known as Mary Bell) did not reach the
standard required to come within Article 2 of the Convention. The case therefore came down
to a balance between the competing interests of X and Y under Article 8 and the press under
Article 10, which is discussed at 9.4.1.3 below.
In 2005, Maxine Carr, the former girlfriend of Soham murderer Ian Huntley, was granted
an indefinite order protecting her new identity by the High Court (Carr v News Group
Newspapers Ltd [2005] EWHC 971 (QB)), as it was necessary to protect ‘life and limb’ as well
as Carr’s psychological health. Carr’s lawyer had argued that such an order was justified on
the grounds laid down in the Venables and Thompson and Mary Bell cases, where similar
permanent injunctions were granted. The Carr case is significant because it is the first such
order granted to an adult who has not committed a serious offence (she was convicted
of perverting the course of justice with Huntley, but was not involved in the murder of the
schoolgirls Holly Wells and Jessica Chapman in August 2002).
9.4.1 Balancing freedom of expression with right to respect for private life
9.4.1.1 Human Rights Act 1998, s 12(4)
Section 12(4) of the 1998 Act is drafted so as to prevent claims of breach of privacy from
unduly restricting the freedom of the press. It states that the courts must have particular
regard to the right to the freedom of expression. Where proceedings relate to journalistic,
literary or artistic material, the court must consider the extent to which the material is already
in the public domain, whether publication would be in the public interest and any relevant
privacy code.
9.4.1.2 Relative status of Articles 8 and 10

The rights people enjoy in Article 8 may affect another person’s freedom of expression.
A balance must be struck between the right to respect for one’s private life and the right of
others to their freedom of expression. There is therefore a challenge to the courts here. We
know from Chapter 8 that where qualified human rights are engaged, the court must apply
the test of proportionality. When a claimant brings a case against the state for breach of
human rights, the test used is the Bank Mellat test. However, where two Convention rights
conflict, such as Arts 8 and 10, the correct approach is more complex, as discussed at 9.4.1.3
and 9.4.1.4 below
9.4.1.3 Protection of identity

In the Mary Bell case, Dame Elizabeth Butler-Sloss accepted that Article 8 had a meaning
covering the physical and psychological integrity of a person, and a right to personal
development and to establish and develop relationships with other human beings and
the outside world. She accepted that not granting the injunction was likely to lead to an
infringement of X and Y’s Article 8 rights. There had been consistent press reporting of and
articles about Mary Bell for many years. Her case aroused considerable media interest and
remained of interest to the reading public’.
Dame Elizabeth also acknowledged that an injunction would interfere with the freedom of
expression of the press. She also stressed that the existence of a free press was in itself
desirable and so any interference with it could only be justified if exceptional circumstances
existed. Dame Elizabeth took into account the following:
(a) X’s fragile mental health;
(b) the young age at which she committed the offences;
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(c) the length of time that had expired since offences were committed; and
(d) the serious risk of potential harassment and possible physical harm.
As a result of these exceptional circumstances, lifetime injunctions against the whole world
were granted to X and Y.
It is important to note that Dame Elizabeth placed great emphasis on evidence of X’s fragile
mental health, a fact that may limit the potential wider effects of this case.
9.4.1.4 Misuse of private information

The House of Lords case of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 is the
leading English authority on the misuse of private information.
The Daily Mirror had published the following regarding the supermodel Naomi Campbell:
(a) That she was addicted to drugs.
(b) That she was receiving treatment for her addiction.
(c) A photograph of her leaving a Narcotics Anonymous meeting.
Their Lordships acknowledged that the court, as a public authority itself, must act compatibly
with both parties’ Convention rights. This meant that Articles 8 and 10 were just as applicable
in a case between two individuals as they were in disputes between an individual and a
public authority. The courts have also debated whether a new cause of action relating to
privacy should be developed, sometimes referred to as ‘misuse of personal information’.
In Campbell itself, the House of Lords said that the appropriate test was whether the claimant
(Ms Campbell) had a reasonable expectation of respect for her private life in the particular
circumstances. This is an objective question and takes account of all the circumstances of
the case, including the attributes of the claimant, the nature of the activity being engaged
in, the place at which it happened, the nature and purpose of the intrusion, the absence
of consent, the effect on the claimant and the circumstances in which, and purposes for
which, the information reached the hands of the publisher. If the claimant has a reasonable
expectation of privacy, then Article 8 will be engaged and the court must carry out a
balancing exercise between the conflicting claims of Articles 8 and 10 to decide if there has
been a breach of Article 8.
All the information that the newspaper had published regarding Campbell was private, as it
related to a medical condition, something that attracts a high degree of protection. However,
the newspaper in turn argued that in publishing the article and/or photographs, it was
exercising its right to freedom of expression (Article 10), and further that under Article 10 the
public had a legitimate right to read about the matter.
When balancing the two conflicting rights, courts must take account of s 12(4) HRA 1998,
which provides that the court must have ‘particular regard’ to the importance of freedom of
expression and, where material is journalistic, whether it would be in the ‘public interest’ for
the material to be published. This does not, however, give Article 10 priority over Article 8, as
neither right takes precedence over the other.
Where human rights are engaged, the court must apply the ‘proportionality’ test (Bank
Mellat – see 8.14.2). Where two qualified Convention rights (Articles 8 and 10) are engaged
the position is more complex than when considering an interference with a single right. As
Baroness Hale commented in Campbell, the court looks at the comparative importance of the
actual rights being claimed in the individual case, and then at the justifications for interfering
with or restricting each of those rights; and then it applies the proportionality test to each.
Baroness Hale suggested that there are different types of freedom of speech, some of which
are more deserving of protection than others. Political speech is particularly deserving of
protection, as is artistic speech or impression. Conversely stories about the intimate details of
a celebrity’s private life attract less protection.
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However, the court accepted that the newspaper was entitled to publish the story that
Campbell had been addicted to drugs to ‘set the record straight’, ie to correct her prior
assertion that she was not addicted. The court then had to consider publication of the details
of the Narcotics Anonymous meeting and the photographs of Campbell leaving the meeting.
The crucial factor in Campbell was that the model was photographed and the text identified
her as leaving Narcotics Anonymous meetings, which, being a medical matter, made the issue
particularly private and might even deter someone in these circumstances from having further
treatment. Baroness Hale distinguished the subject matter of the photograph in this case from
a photograph of Campbell simply walking down the street to go shopping. As a model who
made her living out of modelling designer clothes, there would have been no objection to a
photograph of her going about her daily business as readers of the newspaper would have
been interested in how she looked.
It is important to note that had it not been for the publication of the photographs, the majority
of the House of Lords would have been inclined to regard the balance between Articles 8 and
10 as about even.
It is also clear from Campbell, therefore, that it is not whether the individual action occurred in
the public or private domain that is the determining factor as to whether the individual has a
reasonable expectation of respect for their private life.
9.4.1.5 Photographs
A year after Campbell, the ECtHR considered the position of photographs in the case of
Von Hannover v Germany (No 1) (2005) 40 EHRR 1, which the domestic courts must take into
account as persuasive authority. The Von Hannover case involved a successful claim brought
by Princess Caroline of Monaco that a variety of photographs taken of her by the paparazzi
breached her Article 8 right to respect for her private and family life. The Princess’ claim was
successful, despite the fact that the photographs showed her shopping and skiing, and riding
with her children in a public place. In striking the balance between privacy and the freedom
of expression, the ECtHR ruled that the decisive factor was the contribution that the published
photos and articles made to a debate of general interest. As the applicant exercised no
official function and the photos and articles related exclusively to details of her private life,
they made no such contribution.
It is therefore clear from Von Hannover (No 1) that the fact that someone is a public figure
does not mean that they have no right of respect for their private life when in a public place.
However, in Von Hannover v Germany (No 2) (2012) 55 EHRR 15, the ECtHR may have
retreated slightly from the stringent approach to photographs that it took in Von Hannover (No
1). Von Hannover (No 2) concerned the publication in a German magazine of a photograph
showing Princess Caroline and her husband on a skiing holiday in Switzerland. Accompanying
the photograph was an article about the health of Prince Rainier, Princess Caroline’s father
and then reigning prince of Monaco. The information about Prince Rainier’s health was a
matter of public interest due to his status, and the public were legitimately interested in how
his children ‘reconciled their obligations of family solidarity with the legitimate needs of their
private life’. Moreover, even if Princess Caroline did not perform any official functions, she and
her husband were not ordinary private individuals, but were public figures.
The link between the photograph and accompanying article was close enough to justify its
publication, particularly as there was no evidence that the photographs were taken in either
a covert or intrusive manner. The judgment in Von Hannover (No 2) indicates that the ECtHR
may be allowing states a greater margin of appreciation in this type of case. Nonetheless the
judgment does not clear the way for the press to publish photographs of celebrities carrying
out everyday activities; the photographs must contribute to a genuine debate of general
interest.
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The case of Murray (by his Litigation Friends) v Express Newspapers plc and another [2008]
EWCA Civ 446, [2009] Ch 48 concerned the publication in the Daily Express of a photograph
of M, the infant son of the author JK Rowling, being pushed by his father down an Edinburgh
street in a buggy with his mother walking alongside. The court, following Campbell, confirmed
that the test of whether Article 8 has been engaged at all has to be answered first, before
any balancing exercise between Articles 8 and 10 is carried out, or issues of proportionality
discussed.
If there was a reasonable expectation of privacy, then the second question was how to strike
the balance between the claimant’s right to privacy and the publisher’s right to publish. At
that stage, the question of whether the publication of those private facts would be considered
highly offensive to an objective, reasonable person might be relevant.
Due to the nature of the case, the Court of Appeal did not need to reach a definitive decision
but concluded that it was at least arguable that M had a reasonable expectation of privacy
and that Article 8 was engaged. The court also thought M had an arguable case that the
balance between Articles 8 and 10 should be struck in his favour and against publication.
The court nonetheless thought there might well be circumstances, even after Hannover, in
which there would be no reasonable expectation of privacy. However, it all depended on the
circumstances of the case. Routine activities such as a walk down the street or a trip to the
grocer to buy milk would not necessarily give rise to a reasonable expectation of privacy;
everything depended on the circumstances. However, the court put particular weight on the
need to protect children of parents who were in the public eye from intrusive media attention,
at least to the extent of holding that the child had a reasonable expectation that they would
not be targeted in order to obtain photographs in a public place for publication, where the
taking of such photographs would be objected to on the child’s behalf. Accordingly, the Court
of Appeal’s decision in Murray appears to have dramatically expanded privacy protection for
children.
In the case of RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), the judge
granted an injunction to the new husband of the actor, Kate Winslet, preventing publication by
a newspaper of photographs that had been posted on Facebook by a friend of his.
9.4.1.6 Other case law since Campbell

Another case, this time involving a newspaper article, is Mosley v News Group Newspapers
[2008] EWHC 1777 (QB). Max Mosley, the head of Formula 1 motor racing, claimed that his
right to privacy under Article 8 had been infringed after the News of the World published a
story alleging that he had engaged in a Nazi-themed sado-masochistic orgy with a group of
prostitutes. The court found that Mosley’s rights under Article 8 were clearly engaged –the
activities had taken place in private and only come to light because one of the prostitutes
sold her story. The real issue in the case was whether there was sufficient public interest so
as to justify the publication of the story. The High Court found that there was not, because
the newspaper failed to demonstrate that the activities did actually have a Nazi theme. The
trial judge did suggest that, had the activities had a Nazi theme, there may have been a
public interest in allowing publication. This was because of Mr Mosley’s position as President
of the FIA (the governing body of Formula 1) and son of the wartime fascist Oswald Mosley.
Although the case essentially involved the court applying the test set out in Campbell, it does
suggest that the courts may be more willing than previously to protect the sex lives of those in
the public eye.
In LNS v Persons Unknown [2010] EWHC 119 (QB), the High Court overturned a so-called
‘super-injunction’ that had prevented a newspaper from reporting on an alleged extra-marital
affair of John Terry, the England football team captain. ‘Super-injunctions’ not only prevent
the publication of the story in question, but also forbid any reference that the injunction itself
exists, and they have been criticised as a significant block to freedom of speech. The court
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thought that Terry’s main concern was protecting his financial arrangements (eg sponsorship
deals), rather than the protection of his private life. An injunction was not necessary or
proportionate having regard to the level of gravity of the interference with the footballer’s
private life in the event of publication.
In Ferdinand v MGN Ltd [2011] EWHC 2454 (QB), another case involving an England football
team captain, Rio Ferdinand claimed that a newspaper article about his relationship with a
woman, which allegedly continued even once he had become engaged, breached his privacy.
The court found that since Ferdinand had stated that he was a family man, there was a public
interest in demonstrating that this image was false, particularly since he was by then captain
of the England football team.
Lastly, in PJS v News Group Newspapers Ltd [2016] UKSC 26, The Sun on Sunday proposed to
publish the story of PJS’s sexual encounters with AB, including a three-way sexual encounter
involving PJS, AB and AB’s partner. PJS sued for breach of confidence and breach of privacy
and asked for an injunction to prevent publication. The story had already been published in
the USA (and some other places) and on numerous websites. PJS argued that an injunction
was necessary to protect himself, his partner and their young children.
The majority of the Supreme Court was of the view that, should the injunction be refused, there
would be a ‘media storm’ in England and that an injunction was necessary to protect PJS, his
partner and especially their children.
This case has proved controversial. Details of the story had been published in the USA but, as
the celebrities involved were not so well known there, had not been widely taken up. There
were further articles in Canada and a Scottish newspaper and the details then started to
appear on numerous websites.
9.4.1.7 Is there a new tort of invasion of privacy?

In Wainwright and another v Home Office [2003] UKHL 53 the House of Lords stated that
there was no tort of invasion of privacy. However, the jurisprudence of the higher courts has
developed since then as there has clearly been some judicial dissatisfaction with the need
to ‘squeeze’ breach of privacy claims within the cause of action of common law breach of
confidence.
The Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311 held that there was
now a tort of misuse of private information, distinct from the equitable claim for breach of
confidence. Moreover, in PJS v News Group Newspapers Ltd [2016] UKSC 26 the majority of
the Supreme Court held that publication of private sexual encounters ‘will on the face of it
constitute the tort of invasion of privacy’ and that ‘repetition … on further occasions is capable
of constituting a further tort of invasion of privacy’. Thus it seems that a tort of invasion of
privacy may now have been developed by the courts.
Summary
• In this chapter, you have looked at how the HRA 1998 has incorporated rights conferred
by the ECHR into UK law. Figure 9.1 sets out how the HRA 1998 gives effect to the ECHR.
• You then considered how individuals can rely on Convention rights against public bodies,
in particular by way of judicial review.
• You have looked at where conflict can arise between different Convention rights, with
particular emphasis on Articles 8 and 10.
• You have examined situations that have involved the courts having to balance one
person’s right to respect for their private life with another’s right to freedom of expression.
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Figure 9.1 Convention rights and the HRA 1998
Courts must ‘take into

Courts must interpret UK
account’ ECtHR
legislation consistently with
judgments: s 2
the Convention ‘so far as it is
possible to do so’: s 3
Higher courts may
Convention rights make declaration of
incorporated: s 1 incompatibility: s 4
ECHR and HRA

Absolute/ Unlawful for public
limited rights: authority to act in a way
Arts 2, 3, 4, 5, 6, which is incompatible with
7 and 12 Convention rights: s 6
Qualified rights: Arts 8, 9,

10 and 11, and Art 1 of 1st Court can award damages Must be a ‘victim’
Protocol: for breach of Convention to bring a claim
• Prescribed by law rights where it is necessary under the Act: s 7
• Legitimate aim to afford just satisfaction:
• Necessary in democratic s8
society
Sample questions
Question 1
A religious group applied for planning permission to build a temple. Last week the local
planning authority refused the group planning permission because one of its core beliefs
is that women should have a subordinate role in society and be subject to the headship
of men. As the religious group has already secured alternative premises, it does not want
to challenge the refusal. However, a pressure group that campaigns for religious freedom
wants to apply for judicial review of the decision. (Note that this question includes topics
covered in Chapters 7 and 8).
Can the pressure group challenge the decision of the local planning authority by way
of judicial review on the grounds that it infringes the religious group’s freedom of
religion?
A Yes, because of the importance of the matter (the Convention right of freedom of
religion) and its role as a campaigner for freedom of religion.
B Yes, because there has been a clear breach of the Convention right of freedom of
religion.
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C No, because freedom of religion is a qualified right and the interference with it is
proportionate.
D No, because the pressure group is not a victim under the Human Rights Act 1998.
E No, because the religious group’s right to freedom of religion has not been engaged
as it has found premises elsewhere.
Answer
Option D is correct. A claimant can only bring proceedings for breach of a Convention right
if they are a ‘victim’; ie directly and personally affected as per s 7 of the Human Rights Act
1998. Accordingly, pressure groups will not be victims under s 7 and therefore do not have
the requisite standing to bring a claim for breach of Convention rights, including freedom of
religion. It may well be the case, as option C suggests, that an investigation of the situation
might conclude that the interference is proportionate. Nonetheless, option D is a better
answer than option C as, in the absence of a claimant with the requisite standing, the court
will not need to carry out a proportionality analysis.
Option A is wrong, as it summarises what the position might have been had the pressure
group been applying for judicial review on the traditional grounds (illegality, irrationality
and procedural impropriety), but it is not applicable to claims based on Convention rights.
(A court might nonetheless hold that the religious group would be a more appropriate
challenger.)
Option B is wrong as, even if there has been a clear breach of the religious group’s
Convention rights (which seems unlikely), the pressure group does not have the requisite
standing. Option E is wrong because the pressure group’s right to manifest its beliefs
has been engaged, even if the interference might on investigation be found to be
proportionate.
Question 2
A man convicted of murder committed when he was an adult is released after serving his
sentence. He changes his name and goes to live in a part of the country where he will not
be recognised, as he does not want the community in which he is living to know about his
past. Some newspapers have found out where he lives and want to publish the details.
Will the man be able to obtain an injunction stopping the newspapers from disclosing
his identity and where he lives?
A Yes, because publication of the information will violate his right to life and right to
privacy.
B Yes, because although publication of his details will not violate his right to life, it will be
a disproportionate interference of his right to privacy.
C Yes, because although publication of his details will not violate his right to privacy, it
will be an interference with his absolute right to life.
D No, because as he committed the murder as an adult, he has forfeited his right to
privacy and there is no interference with his right to life.
E No, because publication of the information will not violate his right to life nor be a
disproportionate interference with his right to privacy.
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Answer
Option E is correct. Based on the Mary Bell case, it seems unlikely that the risk of harm
to the man will reach the threshold to engage Article 2 (the right to life). As regards
privacy (Article 8), freedom of expression of the press is highly important and can only be
interfered with in exceptional circumstances, such as existed in the Mary Bell case. No such
circumstances seem to exist here.
Options A, B and C are therefore wrong because they suggest either that there has been an
interference with both Articles 2 and 8 (option A) or that one of them (options B and C) have
been interfered with; as explained above it is unlikely that either has been interfered with.
Option D is wrong as individuals do not forfeit their rights because of criminal conduct.
Question 3
A well-known actor was photographed leaving a walk-in HIV testing clinic in Birmingham.
A newspaper has published the photograph. During her career the actor has disclosed very
little about her private life.
Which of the following best describes whether the actor can bring a claim in the High
Court for breach of her Convention rights?
A She cannot do so. Although the newspaper has interfered with her right to privacy, she
can only bring a claim against it before the European Court of Human Rights.
B She cannot do so because freedom of expression is a more important right than the
right to a private life.
C She cannot do so because English law does not recognise a tort of privacy.
D She can do so because the right to a private life is entitled to greater protection than
freedom of expression.
E She can do so because the newspaper has disproportionately interfered with her right
to a private life.
Answer
Option E is correct. The photograph, relating to a health condition, clearly engages Article
8, the right to a private life, whilst in publishing the photograph the newspaper will be
exercising its Article 10 right of freedom of expression. Neither right has precedence over the
other, hence options B and D are wrong. Instead, the court will balance the actor’s Article
8 right with the newspaper’s Article 10 right. In this instance, following the House of Lords’
judgment in Campbell, the balance is likely to fall in favour of the actor’s Article 8 right as the
newspaper does not seem to have a legitimate reason for disclosing her medical condition.
Option A is wrong as the actor will be able to bring a claim in an English court under the
horizontal effect principle.
Option C is wrong. Following the Supreme Court judgment in in PJS v News Group
Newspapers, it is arguable that English law does recognise a tort of privacy. In any event,
under the horizontal effect principle the courts will give effect to Convention rights through
developing existing causes of action compatibly with the ECHR.
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10 Retained EU Law
10.1 Introduction to retained EU law 206

10.2 What is retained EU law? 206
10.3 Status of retained EU law 209
10.4 Interpretation of retained EU law 210
10.5 Retained EU case law 210
10.6 Retained general principles of EU law 211
10.7 Exclusion of state liability 212
10.8 Correcting ‘deficiencies’ in retained EU law 212
10.9 Supremacy of retained EU law 213
10.10 Challenges to retained EU law 213
10.11 The Withdrawal Agreement 214
SQE1 syllabus
to functioning legal knowledge concerned with the status of EU law in the UK
following the UK’s exit from the EU, including:
• the place of EU law in the UK constitution:
∘ sources of retained EU law;
∘ categories/status/interpretation of retained EU law; and
∘ modification/withdrawal of retained EU law.
Note that for SQE1, candidates are not usually required to recall specific case names or
cite statutory or regulatory authorities. Cases are provided for illustrative purposes only.
Learning outcomes
• explain the meaning of retained EU law and its sources;
• understand the different categories of EU law;
• understand how retained EU law may be amended or repealed;
• apply retained EU law in practice; and
• understand how the Withdrawal Agreement agreed between the UK and EU may
give rise to enforceable rights.
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10.1 Introduction to retained EU law

The UK joined the European Communities on 1 January 1973. Over time the European
Communities became the European Union (EU) and EU law became an ever more pervasive
part of the UK legal system. Substantial parts of English law are based on or are profoundly
influenced by EU law, in particular large swathes of commercial law, employment law
(including laws prohibiting discrimination), environmental law, mergers and acquisitions and
trade law. EU and English law are also very much intertwined in fields such as agriculture,
consumer protection, public health and tourism. As you saw in Chapter 2, in many instances
EU law had supremacy over UK law should there have been a conflict between the two.
This was in accordance with the provisions of the ECA 1972, which was repealed by the
EUWA 2018.
In a referendum held on 23 June 2016 the UK voted by 52% to 48% to leave the EU and
subsequently the UK’s exit took place on 31 January 2020 pursuant to a Withdrawal
Agreement agreed between the UK and EU in October 2019, which entered into force on 1
February 2020. The Withdrawal Agreement provided for a transition period lasting until 31
December 2020 during which for many purposes the UK was treated as a Member State. The
Withdrawal Agreement provided for the possibility of an extension period for up to two years,
but the UK Government ruled this option out despite calls for an extension due to the COVID-
19 pandemic. During the transition period EU law remained in full force in the UK, and so
there was little change in the UK legal system until 31 December 2020. However, the end of
the transition period signalled a profound change in the UK legal system.
If on the UK’s exit from the EU all EU law had ceased to apply, there would have been
massive gaps in the UK’s statute book and regulatory systems. The UK Parliament therefore
enacted EUWA 2018, which aimed to provide legal continuity by creating the concept of
‘retained EU law’. EU law as it existed at the date of the UK’s exit from the EU would be
preserved as a new category of English law with its own distinctive features. The original
version of EUWA 2018 was designed to cater for the possibility of the UK leaving the EU
without agreement (a ‘no-deal Brexit’); however, the UK did ultimately leave the EU on the
basis of the Withdrawal Agreement. As the Withdrawal Agreement is an international treaty,
the UK Government needed to ensure that its provisions were implemented into UK domestic
law. Parliament therefore enacted the European Union (Withdrawal Agreement) Act 2020 (the
Withdrawal Agreement Act 2020) in order to do this.
The Withdrawal Agreement Act 2020 gave effect to the Withdrawal Agreement in part by
amending EUWA 2018 and in part through its own self-standing provisions. Accordingly,
to understand how the Withdrawal Agreement has been implemented into UK law, it is
necessary to consider EUWA 2018 as amended and the free-standing provisions of the
Withdrawal Agreement Act 2020.
10.2 What is retained EU law?

Originally, retained EU law was intended to come into force on the day the UK left the EU
(exit day). However, in order to give effect to the transitional arrangements provided in the
Withdrawal Agreement, the Withdrawal Agreement Act 2020 amended EUWA 2018 so that
retained EU law came into effect at the end of the transition period. Somewhat confusingly,
EUWA 2018 as amended refers to the end of the transition period as ‘IP completion day’, with
‘IP’ standing for ‘implementation period’, the UK Government’s preferred description of the
transition period. The Withdrawal Agreement Act 2020 defines IP completion day as 11.00pm
on 31 December 2020. Retained EU law is therefore effectively a snapshot of EU law that was
in force in the UK immediately before IP completion day, and that law will continue in force
despite the UK’s exit from the EU. However, some key aspects of EU law will be repealed
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Retained EU Law
with effect from IP completion day. For example, as the UK Government decided that the UK
should leave the customs union and single market, UK legislation has repealed the bulk of
EU law on free movement, which will therefore not be retained. Nonetheless, there will be a
huge body of retained EU law, which the UK and devolved governments can decide over time
whether to keep or replace with their own laws.
It is important to understand the different types of EU legislation that can be converted into
retained EU law, and 2.5.3.2 provides a summary of this. Please ensure in particular that you
understand the following types of EU legislation:
• Treaty articles
• Regulations
• Directives
• Decisions.
Section 2.5.3.10 also gives a summary of the three main categories of retained EU
law, namely
• EU-derived domestic legislation
• Direct EU legislation
• Rights etc arising under s 2(1) of the ECA 1972.
However, the following paragraphs cover these in more depth.
10.2.1 EU-derived domestic legislation

Section 2 of EUWA 2018 preserves certain ‘EU-derived domestic legislation’ made under the
ECA 1972. It includes secondary legislation enacted by the UK Government, often in the form
of regulations (not to be confused with EU Regulations), to implement EU obligations, for
example those contained in EU Directives. Under s 2(2) of the ECA 1972, ministers had the
power to implement EU Directives into UK law through secondary legislation. For example, the
EU adopted Council Directive 93/104/EC ([2003] OJ L299/9) concerning working time, which,
subject to certain exemptions, provides for a maximum average working week of 48 hours.
The UK Government then enacted the Working Time Regulations 1998/1833 to implement the
Working Time Directive.
If secondary legislation implementing EU obligations had not been converted into retained EU
law, it would have fallen away at the end of transition period, leaving huge gaps in UK law.
However, secondary legislation such as the Working Time Regulations is preserved to ensure
continuity.
Whilst the bulk of EU-derived domestic legislation consists of secondary legislation, it also
includes some Acts of Parliament. For example, parts of the Equality Act 2010 were enacted to
implement EU anti-discrimination Directives, so will fall within the scope of EU-derived domestic
legislation. Whilst these Acts would have remained in force despite the end of the transition
period, their status as retained EU law is significant, as it is subject to ministers’ powers to
correct deficiencies (10.8 below) and benefits from a limited degree of supremacy (10.9
below).
10.2.2 Direct EU legislation

Section 3 of EUWA 2018 converts certain ‘direct EU legislation’ into UK law so far as ‘operative’
immediately before ‘IP completion day’.
During the UK’s membership of the EU, some EU legislation applied directly in the UK legal
system without the need for any implementing UK legislation, in particular EU Regulations
and certain decisions of the EU. EU Regulations are directly applicable and fully binding in
all Member States. Decisions are binding on those to whom they are addressed (eg an EU
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Member State or an individual company) and are directly applicable. UK courts gave effect to
rights and obligations arising under Regulations and Directives under s 2(1) ECA 1972.
Following the end of the transition period, EU legislation can no longer directly apply in the
UK. Section 3 ensures that, where appropriate, EU legislation continues to have effect in the
UK legal system by converting ‘direct EU legislation’ into domestic legislation at IP completion
day. Where legislation is converted under this section, it is the English language text that exists
on IP completion day that is converted.
EU decisions that are addressed only to a Member State other than the UK are not converted
into domestic law. Additionally, if EU-derived domestic legislation under s 2 reproduces the
effect of an EU Regulation or decision, then it is not converted under s 3. This is to avoid
unnecessary duplication.
An example of an EU Regulation that has become direct EU legislation is Regulation (EC)
261/2004 ([2004] OJ L46/1) protecting air passenger rights. This Regulation requires airlines
to pay compensation to passengers (eg €250 for a flight of less than 1,500 km) if a flight is
significantly delayed or cancelled unless due to circumstances beyond the airline’s control
and in any event to provide assistance (meals, accommodation and phone calls). Passengers
in the UK, backed up by judgments in English courts, have claimed millions of pounds in
compensation from airlines under this regulation. Section 3 ensures that airline passengers in
the UK continue to benefit from it after IP completion day, though as explained at 10.8 below
it has been amended slightly.
10.2.3 Rights etc arising under s 2(1) of the ECA 1972

Section 4(1) preserves certain rights, powers, liabilities, obligations, restrictions, remedies and
procedures recognised and available in UK law immediately before IP completion day under
ECA 1972. It aims to ensure that any remaining EU rights and obligations that do not fall within
the scope of ss 2 and 3 become part of retained EU law.
One of the main types of rights covered by s 4 is directly effective rights contained within EU
treaties; ie those provisions of EU treaties that are sufficiently clear, precise and unconditional
to confer rights directly on individuals, which they can enforce before national courts without
the need for national implementing measures. It is, however, the right that is retained, not the
text of the article itself.
The most important directly effective treaty right that has become retained EU law in this way
is the right for men and women to receive equal pay under Article 157 TFEU. Whilst many
other treaty articles have direct effect, for example those relating to the free movement of
goods, people and services, they do not form part of retained EU law as the UK has repealed
them due to the Government’s decision to leave the single market and customs union.
Directives themselves are as a general rule excluded from the scope of retained EU law (s
4(1) EUWA 2018) as they are implemented into national law by domestic legislation, which
is preserved as EU-derived domestic legislation. However, they are also capable of having
direct effect if they have not been implemented or have been implemented incorrectly,
although only vertically against the state or state bodies. Where rights arising under directly
effective provisions of Directives are of a kind that have been recognised by a UK or EU court
or tribunal before IP completion day, rights of that kind become retained EU law. If, however,
the right is of a kind that has not been recognised by a court, then it is excluded from retained
EU law (s 4(2) EUWA 2018).
There has been some debate about the meaning of s 4(2). One possibility is that the rights
granted by a given Directive will only have direct effect if a court has determined that
the actual rights contained in that Directive itself have direct effect. The problem with this
interpretation is that litigation regarding a Directive generally occurs only when there is some
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Retained EU Law
doubt as to its meaning. If the rights granted by a Directive are clear, then there is unlikely
to be any case law regarding it. It would be strange if the only Directives that could provide
directly effective rights after IP completion day are those that needed litigation to determine
whether they were sufficiently clear and precise to have direct effect. The better interpretation
is that the type of rights granted by a given Directive must have been recognised by a court
pre-IP completion day. For example, the principle of equality has been recognised many
times in case law. Accordingly, a Directive that prohibited discrimination on the grounds of
race, disability, religion or sexual orientation could provide a directly effective right not to be
discriminated against, even if that particular Directive had not been the subject of case law.
EU Directives are not themselves part of retained EU law, so any retention of rights and
obligations in them depends on their implementation through EU-derived domestic legislation
and/or s 4 of EUWA 2018.
10.3 Status of retained EU law

Section 7 of EUWA 2018 defines the status of retained EU law. Section 7(1) provides that EU
law retained under s 2 of EUWA 2018 (EU-derived domestic legislation) has the same status as
it had pre-IP completion day either as primary or secondary legislation.
EU law retained under ss 3 and 4 of EUWA 2018, however, does not fall into the existing
categories as it is neither primary nor secondary legislation; instead it constitutes a new
category of domestic law. Section 7 of EUWA 2018 subdivides retained direct EU legislation (ie
legislation retained under s 3) into two categories:
• retained direct ‘principal’ EU legislation; and
• retained direct ‘minor’ EU legislation.
The distinction is very technical. However, retained direct principal EU legislation includes most
EU Regulations such as Regulation (EC) 261/2004 governing compensation for flight delays
and cancellations. Retained direct minor EU legislation is defined as any retained direct EU
legislation that is not retained direct principal EU legislation. This broadly covers EU tertiary
legislation (acts adopted by the EU institutions pursuant to powers granted to them by a
Regulation or Directive) and EU decisions.
The key difference between ‘minor’ and ‘principal’ retained direct EU legislation is that the
former can be amended or repealed in the same way as ordinary domestic secondary
legislation. In contrast, the latter must be amended or repealed by primary legislation (ie Acts
of the Westminster Parliament or of the devolved legislatures) or in limited circumstances by
secondary legislation. The prime examples of these limited circumstance are:
• Where primary legislation has granted ministers a Henry VIII power. A Henry VIII power
allows ministers to make changes not only to secondary legislation but also to Acts of
Parliament and other primary legislation.
• Where ministers are using powers under EUWA 2018 to correct deficiencies in retained EU
law; see 10.8 below.
EUWA 2018 also treats retained direct principal EU legislation as if it were ‘primary’
legislation for the purposes of the HRA 1998. This prevents it from being declared invalid for
incompatibility with the Convention rights. A declaration of incompatibility pursuant to s 4 of
the 1998 Act is possible, but this would not invalidate the legislation.
EU law that is retained by virtue of s 4 of EUWA 2018 is treated in very much the same way as
retained direct principal legislation.
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10.4 Interpretation of retained EU law

Section 6(3) of EUWA 2018 provides that questions on the meaning of retained EU law that
remains ‘unmodified’ on or after IP completion day by UK law will be determined by UK courts
in accordance with relevant ‘retained case law’ and ‘retained general principles of EU law’;
see 10.5 and 10.6 below for an explanation of these concepts.
Section 6(6) provides that questions on the meaning of retained EU law that has been
modified on or after IP completion day by UK law can be determined in accordance with
relevant retained case law and retained general principles of EU law if doing so is consistent
with the intention of the modifications.
It seems likely that the principle of indirect effect (discussed in 2.5.3.6) has been carried over
into retained EU law, as retained case law should include ECJ judgments such as Case C-106/
89 Marleasing SA v La Comercial Internacional de Alimentacion SA EU:C:1990:395, [1990]
ECR I-4315, where the ECJ held that the national courts of Member States were under a duty
to interpret national law in accordance with the wording and purpose of EU law, including
Directives not yet implemented in the Member State. During the UK’s membership of the EU,
indirect effect applied to all UK legislation, but it will presumably now be limited to retained
EU law.
10.5 Retained EU case law

As stated at 10.4 above, retained EU law is normally to be interpreted in line with retained
case law. Retained case law consists of retained domestic case law and retained EU case
law. Retained domestic case law means the principles and decisions laid down by UK courts
and tribunals before the end of the IP completion day in relation to retained EU law (subject
to certain exceptions).
Retained EU case law means the principles and decisions laid down by the Court of Justice of
the European Union (CJEU) before IP completion day in relation to retained EU law (subject to
certain exceptions).
Accordingly, although it is no longer be possible for UK courts to make references to the
CJEU pursuant to Article 267 TFEU on questions of EU law, its judgments remain binding on
all UK courts other than the UK Supreme Court or the High Court of Justiciary, as the final
criminal court of appeal in Scotland in cases where there is no appeal to the UK Supreme
Court, though this is subject to change as explained in the following paragraph. These two
courts have the power to depart from retained EU case law, applying the same rules they
respectively use in departing from their own previous case law. UK courts may have regard to
post-IP completion day judgments of the CJEU, but will not be bound by them.
Section 6(5) A-D of EUWA 2018 (inserted by the Withdrawal Agreement Act 2020) gives the
Government the power to make regulations by extending the ability to depart from retained
EU case law to additional lower courts and tribunals. Additionally the regulations may specify
the circumstances in which courts may depart from retained EU case law, the test they must
apply and which considerations should be considered relevant in deciding whether to do
so. At the time of writing, the Government has stated that it intends to adopt regulations
extending the ability to depart from retained EU case law to the Court of Appeal.
Section 6 of EUWA 2018 provides that UK courts and tribunals cease to be bound by principles
laid down by the CJEU, or any decisions made by that court, after IP completion day, though
such judgments may have persuasive effect. This means that retained EU case law comprises
only those judgments of the CJEU that were handed down pre-IP completion day.
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Retained EU Law
10.6 Retained general principles of EU law

As well as being interpreted in the light of retained EU case law, retained EU law may also
be interpreted in the light of retained general principles of EU law. However, no general
principle of EU law will be retained unless it was recognised as such by EU case law before
IP completion day. General principles include principles such as proportionality, equality,
fundamental rights and subsidiarity.
However, even where a general principle is retained, failure to comply with it cannot give
rise to a right of action. The consequence of this is illustrated by analysing Case C-555/07
Kücükdeveci v Swedex GmbH & Co KG EU:C:2010:21, [2010] ECR I-00365, in which the CJEU
stated that national courts had to set aside any provision of national law that breached
the general principle of equality. In this case, an employee was suing his employer for
age discrimination before a German court. The employer relied on German legislation
that permitted employers to discriminate against employees aged under 25 years on
the grounds of age. However, as the German law breached the principle of equality,
the German court had to disapply the offending German law, enabling the employee to
succeed in his claim. During the UK’s membership of the EU, UK courts would have been
required to adopt the same approach and to disapply legislation, including primary
legislation, that breached the principle of equality. However, after IP completion day this is
no longer the case.
Many of the general principles have been incorporated into the Charter of Fundamental
Rights of the European Union ([2000] OJ C364/1) (the Charter). The Charter enshrines
certain political, social and economic rights into EU law. The Charter does not, however,
form part of retained EU law (s 5(4) of EUWA 2018). The facts of the case of Benkharbouche
v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62 illustrates the
consequences of this. This case involved claims by employees against their employers, the UK
Sudanese Embassy and the UK Libyan Embassy respectively. The claims related to a number
of employment-related issues including unfair dismissal, race discrimination, non-payment
of wages, holiday pay and breach of the UK’s Working Time Regulations, which had been
adopted to implement the Working Time Directive. The State Immunity Act 1978 gave the
embassies immunity against the claims.
The Supreme Court found that the employees’ claims relating to race discrimination and
working time fell within the scope of EU law. Article 47 of the Charter provides for a right to
a fair trial. The Supreme Court accordingly held that the 1978 Act should be disapplied in
relation to the discrimination and working time claims, as its application would breach the
claimants’ rights under Article 47 of the Charter. However, in relation to the other claims, it was
only possible to issue a declaration of incompatibility under s 4 of the HRA 1998, which did
not affect the validity of the relevant provisions of the 1978 Act; the embassies were therefore
able to rely on the 1978 Act to defend the non-EU based claims. If the same events had
occurred after IP completion day, the Supreme Court would not have been able to disapply
the 1978 Act in relation to the discrimination and working time claims. The claimants would
therefore have been unsuccessful as regards these claims.
The exclusions relating to general principles and the Charter therefore means that individuals
have been deprived of rights that they enjoyed during the UK’s membership of the EU.
The exclusion of the Charter does not, however, ‘affect the retention in domestic law on or
after IP completion day in accordance with this Act of any fundamental rights or principles
which exist irrespective of the Charter’ (s 5(5) EUWA 2018). There are accordingly likely to
be arguments concerning whether a particular right exists as a general principle of EU law,
regardless of its recognition in the Charter.
211
10.7 Exclusion of state liability

In addition to the exclusions referred to in 10.6 above, EUWA 2018 also excludes the principle
of state liability (‘Francovich damages’). In certain circumstances, EU law gives individuals
the right to claim damages from a Member State for its failure to implement a Directive at
all or properly, or for other breaches of EU law. This was first recognised in the CJEU case
of Francovich v Italian Republic (Joined Cases C–6/90 and 9/90) ECLI:EU:C:1991:428, [1991]
ECR I-5357 so the principle of state liability has also been labelled the right to ‘Francovich
damages’.
There is a saving for claims for Francovich damages begun within the period of two years
beginning with IP completion day so far as the proceedings relate to anything that occurred
before IP completion day.
10.8 Correcting ‘deficiencies’ in retained EU law

Section 8 of EUWA 2018 grants temporary powers for UK Government ministers, and devolved
administrations in relation to domestic legislation within areas of devolved competence, to
make secondary legislation that corrects ‘deficiencies’ in retained EU law.
Deficiencies are defined to include:
• provisions that have no practical application after the UK has left the EU;
• provisions on functions that during the UK’s membership of the EU were carried out in the
EU on the UK’s behalf, for example by an EU agency;
• provisions on reciprocal arrangements or rights between the UK and other EU Member
States that are no longer in place or are no longer appropriate;
• any other arrangements or rights, including through EU treaties, that are no longer in
place or no longer appropriate; and
• EU references that are no longer appropriate.
Deficiencies not on the list but which are ‘of a similar kind’ to those listed also fall within the
scope of the correcting power.
As this list indicates, deficiencies can arise for a number of reasons. For example, EU
legislation will sometimes require governments of Member States to consult with the European
Commission before taking certain action. Following IP completion day, it will no longer be
appropriate to require the UK Government to consult with the Commission. EU legislation may
also contain references to the UK being a Member State. Where such legislation is converted
into retained EU law, it would contain inaccurate references or provide for arrangements that
are no longer appropriate. Accordingly, it is possible to correct these deficiencies through
secondary legislation.
The power can only be used to correct deficiencies arising from the UK’s withdrawal from the
EU; it is not a power to make changes of substance to retained EU law.
Regulation (EC) 261/2004 provides an example of where the UK Government has corrected
a deficiency. The Regulation states, for example, that it applies to passengers departing
from an airport in a Member State. The UK Government accordingly adopted a statutory
instrument providing that the retained version of the regulation applies to passengers
departing from an airport in the UK to ensure it makes sense now that the UK is no longer a
Member State.
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Retained EU Law
10.9 Supremacy of retained EU law

As explained in 2.5.3.10, retained EU law keeps a limited form of supremacy. Although
following IP completion day EU law itself no longer has supremacy over UK law, retained EU
law will have supremacy in limited circumstances. For this purpose there are three categories
of law:
• retained EU law;
• UK legislation enacted pre-IP completion day that is not retained EU law; and
• all UK legislation enacted after IP completion day.
Should a conflict occur between a provision of retained EU law and a piece of pre-IP
completion day legislation that is not retained EU law, then the former will prevail over the
latter. For example, if there is a conflict between an EU Regulation adopted in 2010 that has
become retained EU law under s 3 of EUWA 2018 and an Act of Parliament enacted in 2018,
the regulation of 2010 will have supremacy over the Act of 2018.
10.10 Challenges to retained EU law

As explained at 10.3 above, domestic law that becomes retained EU law by virtue of s 2
of EUWA 2018 (EU-derived domestic legislation) will continue to be classed as primary or
secondary legislation as applicable.
Primary legislation that falls within of s 2 of EUWA 2018 can only be challenged on the
grounds that it contravenes another provision of retained EU law that should prevail over it.
For example, suppose an Act of Parliament in 2010 that is EU-derived domestic legislation
because it implemented a Directive contradicts an EU Regulation adopted in 2015, which has
become retained EU law under s 3 of EUWA 2018 (direct EU legislation). UK courts will apply
the contradictory provisions in the retained regulation in preference to the Act of 2010.
Secondary legislation that falls within s 2 of EUWA 2018 can be challenged on the same
basis, as well as on the same public law grounds that apply to any other secondary
legislation, as covered in Chapter 6.
EUWA 2018 also provides that no provision of retained EU law can be challenged on or after
IP completion day on the basis that an EU instrument, such as an EU regulation or decision,
was invalid. For example, if an EU regulation has become retained EU law under s 3 of EUWA
2018, it is not possible to challenge the validity of the retained regulation on the grounds that
the original EU regulation was invalid. However, this exclusion does not apply where the CJEU
has found the EU instrument to be invalid prior to IP completion day, or where regulations
made by a UK minister permit the challenge. The Challenges to Validity of EU Instruments
(EU Exit) Regulations 2019 (SI 2019/673) do, in fact, permit such a challenge as they allow the
courts to decide challenges to the validity of EU instruments that started before IP day but
concluded after it.
As explained at 10.3 above, retained direct principal EU legislation is treated as primary
legislation for the purposes of challenges under the HRA 1998, ie it can be subject to a
declaration of incompatibility, but that finding does not affect its continued validity. Conversely,
retained direct minor EU legislation is treated as subordinate legislation for HRA 1998
purposes, so it can be declared invalid if held to be incompatible.
It is likely that the majority of challenges are likely to be in relation to modifications made to
retained EU law by ministers using the powers to correct deficiencies. Although EUWA 2018
213
defines deficiencies widely, challenges are probable on the basis that ministers have used
them to make substantive policy changes rather than simply to correct deficiencies.
10.11 The Withdrawal Agreement

In October 2019 the UK Government and the EU reached agreement on a Withdrawal
Agreement, which set out the terms for the UK’s exit from the EU. It entered into force on 1
February 2020 together with the Political Declaration setting out the framework of the future
EU–UK partnership. The Withdrawal Agreement is legally binding in international law, whereas
the Political Declaration is not legally binding but aimed to set out the parameters of the
negotiations for the future relationship between the UK and EU.
The Withdrawal Agreement covers a number of issues, including the following:
• Citizens’ rights: The Withdrawal Agreement protects the rights of UK citizens living in the
EU and EU citizens living in the UK at the end of the transition period, as well as their
family members. They will have the right to continue to live and work in their host state.
This also applies to citizens who moved to the UK or the EU during the transition period, ie
after the UK’s exit from the EU but before IP completion day.
The Withdrawal Agreement states that citizens may need to apply for a residence status in
their host state in accordance with the host state’s law. EU citizens resident in the UK must
apply using the EU Settlement Scheme. Citizens who have been living in the host state for
five years continuously will be eligible for permanent residence (termed ‘settled status’ in
the UK).
• Financial settlement: The UK agreed to abide by the financial commitments it made as a
Member State, including its contributions to the EU budget.
• The Northern Ireland protocol: This aims to avoid the introduction of a hard border on
the island of Ireland between Northern Ireland and the Republic of Ireland should the
UK and EU fail to agree a free trade agreement that deals satisfactorily with the border
issues.
• Governance and dispute resolution: A joint committee oversees the Withdrawal
Agreement. It comprises representatives from –and is co-chaired by –the EU and the UK.
The UK and EU will first seek to resolve disputes through the joint committee where they
will try to find a solution. If the committee cannot agree, then either the EU or the UK can
request that the dispute be referred to an arbitration panel.
The provisions of the Withdrawal Agreement that lawyers practising in England and Wales
are most likely to come across relate to citizens’ rights. These are likely to remain relevant for
many decades as not only EU citizens born in the UK before IP completion day will be able
to rely on them, but also their children. The Internal Market Bill submitted to Parliament by the
UK Government in September 2020 contains clauses that would enable ministers to breach
some of the provisions of the Withdrawal Agreement. However, these clauses do not affect the
citizens’ rights provisions.
Article 4 of the Withdrawal Agreement states that the provisions of the Withdrawal Agreement
itself and the provisions of EU law that it incorporates shall have the same effect in UK law
as they produce within the EU and EU Member States. This includes the ability of individuals
(including businesses) to rely directly on provisions contained or referred to in the Agreement
that meet the criteria for direct effect under EU law. One of the main practical effects of this
is that EU citizens living in the UK at the end of the transition period should be able to rely on
the direct effect of the citizens’ rights provisions in the Withdrawal Agreement.
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Retained EU Law
Section 7A of EUWA 2018 (inserted by the Withdrawal Agreement Act) provides for the
enforcement of rights arising under the Withdrawal Agreement in very similar terms to those
contained in the ECA 1972 regarding the EU Treaties. This gives supremacy to the Withdrawal
Agreement in much the same way that the ECA 1972 gave supremacy to the EU Treaties.
Direct effect will continue to play a role in UK law, albeit in a more limited field.
Even though most of the EU legislation regarding free movement of persons will not form part
of retained EU law as the UK will repeal it, much of that legislation will remain relevant after
the UK’s withdrawal from the EU under the Withdrawal Agreement. For example, whether
UK citizens, EU27 citizens and their respective family members are eligible for permanent
residence depends largely on whether they satisfy the criteria set in relevant EU legislation.
Additionally, UK courts will still be able to make Article 267 references concerning the citizens’
rights provisions in the Withdrawal Agreement for a period of up to eight years after the end
of the transition period. However, this is a discretionary power in that UK courts will not be
obliged to make a reference, unlike the position during the UK’s membership of the EU when
references were in certain circumstances mandatory. Nevertheless, if a UK court does make a
reference, it will be bound by the CJEU’s ruling.
As indicated above, the wording of the Withdrawal Agreement also suggests that the citizens’
rights provisions have direct effect, so UK and EU27 citizens and their respective family
members are able to rely on them even if national legislation implementing those provisions
is defective. For example, suppose UK immigration legislation denies an EU citizen rights
granted to them by the Withdrawal Agreement. The EU citizen will be able to enforce those
rights in a UK court and possibly also claim damages under the Francovich principle for any
loss suffered.
Summary
In this chapter you have examined the concept of retained EU law. EU law has pervaded
into large parts of the UK legal system and repealing and replacing it prior to the UK’s exit
from the EU would have been impossible. EUWA 2018 aims to ensure legal continuity and a
functioning statute post-exit by taking a snapshot of EU law as it exists in the UK at the end of
the transition period (defined as IP completion day) and converting it into ‘retained EU law’, a
novel type of law with its own characteristics.
Retained EU law
The three main categories of retained EU law are:
• EU-derived domestic legislation (secondary legislation and primary legislation enacted to
implement the UK’s EU obligations)
• Direct EU legislation (primarily EU Regulations and decisions)
• Rights etc arising under s 2(1) of the ECA 1972 (directly effective rights arising under the
EU Treaties and possibly also Directives).
Retained EU law will keep a limited form of supremacy in that it will prevail over other
legislation enacted pre-IP completion day. However, legislation enacted after IP completion
day will prevail over retained EU law.
Correcting deficiencies in retained EU law

Some provisions of retained EU law will not make sense or be appropriate after IP completion
day. Ministers have the power to correct these deficiencies through secondary legislation.
215
They may not, however, use the power to make changes of significance. If they do so, it is
probable that there will be challenges to the secondary legislation via judicial review.
The Withdrawal Agreement

Although the Withdrawal Agreement covers a range of issues relating to the UK’s exit from the
EU, it is the citizens’ rights provisions that practising lawyers are most likely to encounter. The
key point is that these provisions appear to have direct effect, and that means that EU citizens
will be able to rely on them in national courts should domestic UK legislation fail to protect
their rights adequately.
Sample questions
Question 1
An EU Directive (fictitious) adopted in 2017 provides that Member States must ensure that
the use of latex gloves is prohibited in restaurants, cafeterias and other places that serve
hot food for consumption on the premises. The Directive was adopted due to medical
evidence that latex gloves were causing an allergic reaction. The Directive further provides
that Member States should implement it by 30 November 2019. The UK Government took no
steps to implement it. In May 2020 the CJEU ruled that the provisions of the Directive have
direct effect.
After IP completion day a woman working in a cafeteria operated by a government
department suffered an allergic reaction as a result of wearing latex gloves.
Can the woman make a claim against the government department based on the
Directive?
A Yes, because the Directive was due to be implemented before IP completion day, it has
direct effect, so it can be relied upon vertically against a state body.
B Yes, because the rights arising under the Directive are of a kind that have been
recognised by a UK or EU court or tribunal before IP completion day and so can be
relied upon vertically against a state body.
C Yes, because the Directive was due to be implemented before IP completion day, it has
become retained EU law and so can be relied upon vertically against a state body.
D No, because Directives do not become retained EU law and so cannot be enforced in
the UK after IP completion day.
E No, because rights arising under Directives cannot be enforced in the UK after IP
completion day as they are covered by an exclusion as regards enforcement in UK
legislation.
Answer
Option B is correct. Directives are capable of having direct effect if they have not been
implemented or implemented incorrectly, although only vertically against the state or state
bodies. As the rights granted by the Directive in this question are of a kind that have been
recognised by a UK or EU court or tribunal before IP completion day, the rights it grants
will become retained EU law. Option B is a better answer than option A as option A is too
simplistic and states the position during the UK’s membership of the EU.
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Retained EU Law
Option C is wrong as Directives do not become retained EU law, as normally they are
implemented into domestic law by primary or secondary legislation. Where rights under a
Directive are preserved, it is the rights themselves that become retained EU law rather than
the Directive.
Option D is wrong as, although it correctly states that Directives do not become retained EU
law, it ignores the fact that rights arising under Directives can become retained EU law, as set
out in option B. Option E is wrong. Although rights arising under Directives are only retained
in limited circumstances, there is no exclusion relating to the enforcement of any rights that
are retained. Regarding other sources of EU law, the main exclusions relate to the Charter of
Fundamental Rights and the enforcement of general principles.
Question 2
A woman is paid less by her employer than a male colleague doing work of equal value.
This is permitted by a (fictitious) Act of Parliament enacted in 2015. The woman claims that
the employer newspaper has infringed her right to equal pay for work of equal value under
Art 157 TFEU.
Can the woman make a claim against her employer relying on Art 157 TFEU?
A Yes, because directly effective rights arising under the TFEU become retained EU law.
B Yes, because directly effective rights arising under the TFEU become direct EU
legislation.
C No, because UK Acts of Parliament, whenever enacted, prevail over retained EU law.
D No, because rights arising under the TFEU fall within one of the exclusions from retained
EU law.
E No, because the UK has left the EU so rights arising under the TFEU are irrelevant.
Answer
A is the correct answer. Rights etc arising under s 2(1) of the ECA 1972 become retained EU
law (s 4 EUWA 2018), and the right to equal pay is a prime example of such a right. Option
B is wrong because they do not become direct EU legislation; an example of direct EU
legislation is an EU regulation that has become retained EU law.
Option C is wrong as retained EU law has a limited from of supremacy over UK legislation
(including Acts of Parliament) enacted pre-IP completion day. Option D is wrong as there is
no applicable exclusion.
Option E is wrong as it clear from s 4 of EUWA 2018 that treaty rights do remain relevant in
the UK legal system.
Question 3
A man who is a Danish citizen has been resident in the UK for over five years and applies
for settled status. Under the terms of the Withdrawal Agreement governing the UK’s exit
from the EU, he is entitled to permanent residence in the UK. The Home Office rejects his
application on the grounds that a section in an Act (fictitious) of the UK Parliament excludes
a person in his position from settled status. The Act does not, however, attempt to override
the Withdrawal Agreement.
Can the man challenge the Home Office’s refusal to grant him settled status?
A No, because an Act of Parliament will automatically override conflicting provisions in
the Withdrawal Agreement.
217
B No, because the Withdrawal Agreement is an international treaty, which does not give
rise to rights in UK law.
C Yes, because international treaties are automatically incorporated into UK law when
ratified by the UK Government.
D Yes, because UK legislation has provided for the direct effect of the relevant provisions
of the Withdrawal Agreement.
E Yes, because the UK Parliament cannot legislate contrary to international treaties.
Answer
Option D is correct. EUWA 2018 provides for the Withdrawal Agreement, including the citizens’
rights provisions, to have direct effect, so its provisions will override the conflicting UK statute.
If the UK statute had expressly and unequivocally overridden the relevant provisions of the
Withdrawal Agreement, then UK courts would have applied the statute. However, the question
indicates that is not the case, so option A is wrong. Option B is wrong; although international
treaties do not in themselves give rise to rights in UK law, EUWA 2018 has incorporated the
Withdrawal Agreement into UK law.
Option C is wrong because international treaties need to be incorporated into UK law to
have direct effect. However, the Withdrawal Agreement Act 2020 did this. Option E is wrong
because Parliament can legislate contrary to international treaties, as Parliament is sovereign.
Nonetheless, any such legislation would breach international law.
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Index
A principles 3–4
residual freedom principle 6, 86
absolute rights 154–63, 172, 176–8, 183, 185 royal prerogative 7–9, 23
access to justice 64, 168 rule of law, and 3–4, 6, 62
accountability 11–12, 74–5 separation of powers, and 3–4, 11, 66–7
Acts of Devolution 5 sources of 4–12, 22
Acts of Parliament 5–6, 22–3, 25–6 sovereignty of Parliamentary, and 4, 22
Acts of Union 1706–07 5, 24–5, 44 types of 2–3
affirmative resolution procedure 20 contempt of court 36–8, 72
assisted suicide 159 Coronavirus Act 2020 69
corporal punishment 160–1
B cross-examination of witnesses 122, 172
bias, rule against 115–17, 127 Crown immunity 23, 64–5
Bill of Rights 1689 5, 21, 36–7
Bingham, Lord 62 D
breach of the peace 93–5 damages 144–5, 190, 192
Brexit see also retained EU law death penalty 158, 161, 185
background 6, 206 declarations 143–4
citizens' rights, protection of 214–16 declarations of incompatibility 34–6, 63, 190–1,
law changes resulting from 206–7 211, 213
Northern Ireland protocol 214 delegated legislation 20, 68–9, 122–3
sovereignty of Parliament, and 29, 32–3 delegation, rule against 106–7
transition period 206–7 democratic society, rights necessary in 157, 173
UK government commitments 214–15 deportation 64–5, 161, 175–6
Withdrawal Acts 6, 23–5, 32, 70, 206 devolution 5, 55
Withdrawal Agreement 25, 29, 33, 78, devolution process 45–6, 50, 55
206, 214–16 devolved matters 46–51, 48–9
broadcasting 179 devolved powers 24–5
Joint Ministerial Committee 54
C legislative process, impacts on 17–19, 28
Carltona principle 107 Northern Ireland 44–5, 50–2
constitutional conventions 71–2, 77 reserved powers model 46, 52
ministerial responsibility 10–11 Scotland 19, 44–8, 52–3
Parliamentary sovereignty, and 22 Sewel Convention 47–8, 50
purpose of 9–12 sovereignty of Parliament, and 23–5, 47–8
Constitutional Reform Act 2005 6, 63, 72–4, 77 sub-committees of the JMC 54
constitutions 12 Supreme Court, references/appeals to 52–3
case law, and 6–7 Supreme Court, role of 52–3
checks and balances 4, 7 tax-raising powers 46–7, 49
constitutional conventions 9–12, 71–2, 77 UK Government, relationships with devolved
constitutional statutes, repeal of 25–6 institutions 54
judicial review, and 7, 12 54
law reform 6 UK Parliamentary powers, impact on 45
legal authority for state actions 6 Wales 44, 48–50, 52
legislative sources of 5–6, 22 Dicey, AV 7, 21–2, 60–1
Index
discretion, fettering of 107–8 right to free elections 185

discrimination, protection from 63, 183, right to liberty and security 155, 163–6
207–8, 211 right to life 155, 158–60
due process of law principle 61 right to marry 156, 183
right to respect for private and family life
E 35, 155, 174–6, 195–6
right to vote 185
elections 16–17, 46, 49, 51, 68, 185 slavery and forced labour, freedom from
elective dictatorship 68 155, 162–3
embryos/foetuses 159 state applications 153
emergency debates 69 torture, inhuman or degrading treatment
Enrolled Act rule 21–2 or punishment, freedom from 33–5,
entrenchment theory 27 155, 160–1
equal pay 208 European Union law
equality before the law 4, 61, 64–5 Charter of Fundamental Rights 211
errors of law or fact 111–12 declarations of incompatibility 34–6, 63,
European Convention on Human Rights 190–1, 211, 213
(ECHR) 1950 185, 201 direct effect of legislation 30–2
absolute rights 154–63, 172, 176–8, express repeal doctrine, and 32
183, 185 implied repeal doctrine, and 32–3
accordance with law, qualification of rights incorporation into UK law 30–3
in 156–7 indirect effect of legislation 31, 210
background 152–3 legislation, types of 29–30
binding nature of 152–3 non-implementation of, state liability for 32
case trends 153 purposive interpretation 31, 34–5
death penalty, abolition of 185 retained law ( see retained EU law)
deportation or extradition, and 161, 175–6 sovereignty of Parliament, compatibility
derogations 158 with 29–33, 39
discrimination, protection from 183 supremacy, doctrine of 29–33
freedom of assembly and association 86, UK withdrawal from (see Brexit; retained
156, 181–3 EU law)
freedom of expression 86, 156, 179–81, 195 executive 4
freedom of thought, conscience and collective cabinet responsibility 70–1
religion 156, 176–8 constitutional conventions 10–11
incorporation into UK law (see Human definition 67
Rights Act) judiciary, relationship with 72–7
individual petitions 153 legislature, relationship with 67–71
legitimate aims, and 157 national security powers 71–2, 76
limited rights 154–6, 163–72, 185 royal prerogative, and 71–2, 75–7
margin of appreciation 157, 198 separation of powers 67–77
necessity of rights in democratic society express repeal, doctrine of 23
157, 173 extradition 161, 175–6
overview 33
peaceful enjoyment of possessions
156, 183–4
F
proceedings 153–4 fairness see procedural fairness; right to
proportionality 157, 173–4, 179 fair trial
qualified rights 154–7, 173–85 forced or compulsory labour 155, 162–3
remedies 153 freedom of assembly and association 86, 94–5,
retrospective crimes 172 156, 181–3
right to an effective remedy 183 freedom of expression 21, 86, 156
right to education 184–5 hate speech 180–1
right to fair trial 7, 34, 155, 166–72 Parliamentary privilege, and 36–8
220
Index
restrictions 179 I
right to respect for private life, conflicts with
195–200 identity, protection of 196–7
freedom of thought, conscience and religion illegality 105–12, 126
156, 176–8 acting under dictation of another 107
acting without legal authority 106
applying general policy too strictly 108
G delegation, rule against 106–7
general committees 69 discretion, fettering of 107–8
general elections 16–17, 68 dual purposes 108–9
Grenfell Tower Inquiry 79 errors of law or fact 111–12
improper or unauthorised purposes 108
H irrelevant considerations 109–11
immunity
habeas corpus 7, 60 Crown immunity 23, 64–5
Hailsham, Lord 68 judiciary, of 72–3
hate speech 180–1 Parliamentary privilege, and 36–7
heads of state 2, 116 state immunity 116
Henry VIII powers 28, 68–9, 209 implied repeal, doctrine of 23, 25–6
House of Commons 5, 16, 19–20, 69 improper purposes, use of power for 108
House of Lords 5–6, 10–11, 16–17 indirect interests 116–17, 127
legislation, powers to injunctions 144
reject 11, 19–21, 69 international law 22
Human Rights Act 1998 5, 200–1 intimidation 88, 91
acts of public authorities 191 irrationality 105, 113–14
Convention rights conflicts 195–200
declaration of incompatibility 34–6, 63,
190–1, 211
J
delegated legislation 192 Joint Ministerial Committee 54
enforcement against private individuals Judicial Appointments Commission 6, 73
191, 194–5 judicial review, generally 103
enforcement against public common law development 7
bodies 192–4 constitutional principles, and 104–5
express repeal of 36 constitutions, of 7, 12
fast track procedures 190 executive powers, of 74–5
freedom of expression vs. right to respect grounds for (see judicial review grounds)
for private life 195–200 public procession/assembly bans, of
horizontal effect 191, 195 89–90, 92
incorporation of ECHR 33–4, 153, 190 royal prerogative powers, of 75–7
individual proceedings, right to bring rule of law, and 104
190–2, 195 separation of powers, role in 104–5
judicial interpretation, role of 34–6, 79 judicial review grounds 105–6, 126–7
judicial review, and 191–4 bias, rule against 115–17, 127
overview 190 EU law 106
proportionality 197–9 HRA, and 191–4
public order law, impact on 86 illegality 105–12, 126
remedial orders 191 irrationality 105, 113–14, 126
remedies for breach 153, 190, 192 legitimate expectations 117–20, 124–5, 127
right to life vs. right to respect for private mandatory or directory requirements 123–4
life 195 natural justice, and 115–23, 127
sovereignty of Parliament, and 34–6 procedural impropriety 106, 114–23, 126–7
standing 192 procedural ultra vires 123–4
Hunting Act 2004 20–2 statutory procedures, breach of 123–4, 127
Wednesbury principle 113
221
Index
judicial review procedure and remedies legitimate expectations 117–20, 124–5

Administrative Court role 137 Leveson Inquiry 79
appropriateness of 133–5 life peers 16–17
claims, eligibility criteria 137–41 life sentences 63
claims procedures 141–2 limited rights 154–6, 163–72, 185
jurisdiction exclusions 139–41 Lord Chancellor 73–4, 77
non-prerogative orders 143–5 Lord Chief Justice 73
ouster clauses 139–41
overview 132, 145–6 M
pre-action protocols 141
prerogative orders 143 Magna Carta 1215 5, 60
private law remedies 142–5 mandatory orders 143
procedural exclusivity principle 133–5 manner and form debate 25, 27–8
public and private law, cases marriage 156, 183
involving 134–5 media, privacy conflicts with 196–200
public bodies, restriction to meetings see public meetings and assemblies
decisions by 135 Members of Parliament 46
public law remedies 142–3 discipline of 37–8
source and nature of power tests 135 eligibility, limitations on 67, 77
standing 136–7, 141 immunity of 36–7
statutory remedies 141 ministerial responsibility 10–11, 70–1
sufficient-interest requirement 136–7 military operations 71
time limits 138–9 miners' strike 86, 90, 94
judiciary 4, 67 Monarchy 2
appointments 6, 72–4 Crown immunity 22, 64–5
constitutional conventions 72, 77 role and powers of 10–11, 67
executive, relationship with 72–7 royal prerogative 7–9, 22–3, 71–2, 75–7
immunity of 72–3
independence and impartiality 4, 11, N
72–3, 79 national security 71–2, 76, 179
law reform 73–5 natural justice 115–23
legislature, relationship with 77–9 application cases 117, 119–20
politicisation of 79 bias, rule against 115–17
role and powers 6–7, 77–8 delegated legislation 122–3
separation of powers 72–9 direct interests 115–16, 127
sub-judice rule 73, 77 fairness and claimant's interest 117–18
forfeiture cases 117–18, 120
K indirect interests 116–17, 127
kettling 95, 165 legitimate expectations 117–20
right to fair trial 117–23
right to oral hearing and cross-examination
L of witnesses 122
Law Lords 77 right to reasons 120–2
legal certainty 4, 61, 65 negative resolution procedure 20
legislative scrutiny 20, 69–71 Northern Ireland 44–5, 50–2
legislature 4 Brexit, and 214
executive, relationship with 67–71 British-Irish Council 50
judiciary, relationship with 77–9 devolution 24, 50–1
separation of powers 67–79 elections 51
legitimacy 60; see also rule of law; separation Good Friday Agreement 50
of powers legislative powers 44, 50–2
legitimate aims 157 NI Assembly 44–5, 50–1
222
Index
NI Executive 45, 51 Prime Minister 10, 16, 68–9

North/South Ministerial Council 50 principle of legality 65
Sewel Convention 51 prisoners 185
sovereignty of Parliament, and 24 private bills 19
Stormont Parliament 44–5 private information, misuse of 197–8, 200
private members' bills 18
O procedural exclusivity principle 133–5
procedural impropriety 106, 114–23, 126–7
ouster clauses 139–41 bias, rule against 115–17, 127
fairness/natural justice 106, 115–23
P procedural ultra vires 123–4
Parliament 38–9 right to fair trial 117–22, 127
collective cabinet responsibility 70–1 statutory requirements, breach of
composition 16–17, 67 123–4, 127
delegated legislation 20, 68–9 procedural ultra vires 123–4
dissolution of 8, 10, 23, 76 processions 87–90
elections 16–17, 68, 185 advance notice 87, 95–6
exclusive cognisance of 37–8 imposing conditions on 88–9
executive–legislature, relationships lawful processions 86–7
between 67–71 offences and penalties 88–90
free speech in 21 prohibition, powers of 89–90
government ministers, restrictions on 67 qualifications and exemptions 87–8
House of Commons 5, 16, 19–20, 69 prohibiting orders 143
House of Lords 5, 10–11, 16–17, 19–21, 69 property, deprivation of 184
legislative competence of 22–3 proportionality
legislative process 17–20 public assembly restrictions, of 92, 95
legislative scrutiny 20, 69–71 qualified rights, of 157, 173–4, 179
meeting and duration 17 rights conflicts, and 197–9
ministerial resignations 70–1 prorogation 17, 75
Parliament Acts 1911 and 1949 5, 2 0, 27, 69 public bills 17, 19
parliamentary privilege 36–9 public highways 86, 93
private bills 19 public meetings and assemblies 90–3
public bills 18–19 definitions 91–2
role and powers 16, 22–3, 71–2 offences and penalties 91–3
royal prerogative, and 71–2, 75–7 permission and conditions for 90–1
sovereignty (see sovereignty of Parliament) Police powers 91–4
term of 8, 17, 23 trespassory assemblies 91–3
vote of no-confidence 11, 17 Public Order Act 1986 5, 86–90, 95–6
Parliament Acts 1911 and 1949 5, 2 0, 27, 69 public order law
Parliamentary Ombudsman 69 advance notice provisions 87, 91, 95–6
parliamentary privilege 36–9 breach of the peace 93–5
parliamentary sovereignty/supremacy see burden of proof 89, 92
sovereignty of Parliament criminal offences 86
photographs 197–9 definitions 87, 91–2
Police powers 5, 94 ECHR and HRA impact on 86–7
public meetings and assemblies 91–3 exempted processions 87–8
public processions 88–90 freedom of assembly and association, and
political advertising 179 86, 94–5
prerogative orders 143 hate speech 180
prerogative powers 7–9, 23, 71–2, 75–7 imposing conditions on processions/
pressure groups 136–7, 192 assemblies 88–9, 91
presumption of innocence 167, 170–1 intimidation 88, 91
223
Index
public order law (continued ) retained general principles 211

judicial review 89–90, 92 rights arising under ECA 1972 section
lawful excuse 86–7 2(1) 33
lawful processions 86–7 sovereignty of Parliament, and 32–3
offences and penalties 88–93 state liability, exclusion of 212
overview 86–7 status of 209
Police powers 87–94 supremacy of 213
processions 87–90 retrospectivity 23, 172
prohibition of processions 89–90 right to an effective remedy 183
proportionality in 92, 95 right to die 159
public meetings and assemblies 90–3 right to education 184–5
residual freedoms 6, 86 right to fair trial 7, 34, 120, 155, 166–72
right to protest 86 access to court 168
serious public disorder or damage to application cases 117, 119–20
property, risk of 88–91 bias, rule against 117
trespassory assemblies 91–3 children, proceedings against 169
wilful obstruction of highway, and 86 civil rights and obligations 166–7
criminal charges, interpretation of 167
Q defendants, additional rights in criminal
proceedings 171–2
qualified rights 154–7, 173–85
effective participation 169
quashing orders 143
evidence, exclusion of 169–70
exceptions 120
R forfeiture cases 117–18, 120
referendums 6, 46 independent and impartial tribunal
religion see freedom of thought, conscience and 117, 168
religion interpreter, access to 172
remedies legitimate expectations, and 117–20
breach of ECHR, for 153, 190, 192 life sentences, and 63
damages 144–5, 190, 192 minimum rights in criminal cases 167–8
declarations 143–4 presumption of innocence 167, 170–1
injunctions 144 public trial 168–9
judicial review, in 143–5 right to cross-examination of witnesses
non-prerogative orders 143–5 122, 172
prerogative orders 143 right to legal representation 171
repeal of statutes 23, 25–6, 33, 209 right to oral hearing 122
residual freedom principle 6, 86 right to prepare defence 171
retained EU law 215–16 right to reasons 120–2, 171
amendment or repeal of 209, 212 right to silence 170–1
background 6, 206 rule of law, and 63
challenging 213–14 strict liability offences 170
declarations of incompatibility 211, 213 trial within reasonable time 169
deficiencies in, correction of 212, 215–16 right to free elections 185
direct EU legislation 32, 207–9 right to liberty 155, 163–6
directly effective treaty rights 208–9 breach of the peace, and 95
EU-derived domestic legislation 32, 207 lawful deprivation 165–6
exclusions 208, 211–12 rule of law, and 61, 63
implied repeal doctrine, and 33 right to life 155, 158–60, 195
indirect effect principle, and 210 death penalty 158
interpretation of 210 duty to investigate, and 159–60
minor vs. principal retained law 209 embryos/foetuses, of 159
purpose 207–9 right to die 159
retained case law 210 use of force 158–9
224
Index
right to marry 156, 183 separation of powers 3–4, 65, 80

right to peaceful enjoyment of possessions checks and balances 69–70
156, 183–4 constitutional provisions 3–4, 11, 66–7
right to reasons 120–2, 171 doctrine, development of 65–6
right to respect for private and family life 35, executive–judiciary, relationships
155, 174–6, 195–200 between 72–7
identity, protection of 196–7 executive–legislature, relationships
photographs 197–9 between 67–72
private information, misuse of 197–8 judicial review role in 104
right to silence 170–1 legislature -judiciary, relationships
right to vote 79, 185 between 77–9
Roskill, Lord 76 parliamentary scrutiny 20, 69–71
Royal Assent 10, 67 US model 66
royal prerogative 7–9, 22–3, 71–2, 75–7 servitude 155, 162–3
rule of law 60 Sewell Convention 11–12, 24, 47–8, 50–1
access to justice, and 64 silence 170–1
contemporary relevance 62–5 slavery 155, 162–3
Crown immunity, and 64–5 sovereignty of Parliament 39, 78
development 60 Acts of Union, devolution and
equality before the law 4, 61, 64–5 independence, impacts
importance 61–4 of 24–5, 47–8
judicial and statutory recognition 62–3 Brexit, and 29, 32–3
judicial decision-making 6–7 constitutional amendments/repeals
judicial review, relationship with 104 22, 25–6
legal certainty, and 61, 65 development 21
limits of 65 domestic law limitations on 24–8
modern interpretations 60–2 Enrolled Act rule 21–2
principles of 3–4, 6, 60, 62 entrenchment theory 27
right to fair trial, and 63 EU law, compatibility with 29–33, 39
right to liberty, and 61, 63 express repeal doctrine 23, 32
sovereignty of Parliament, and 28, 65 Henry VIII powers 28, 68–9, 209
traditional definition 7, 60
Human Rights Act, impact of 34–6
implied repeal doctrine 23, 25–6, 32–3
S international law, and 22
Salisbury Convention 11, 19 judicial review, and 104–5
same-sex partners, rights of 34–5, 183 legislative competence,
Scotland 44 limits on 22–3
Acts of Union 1706–07 5, 24–5, 44 manner and form debate 25, 27–8
devolution 24–5, 45–7 principle of legality, and 65
elections 46 principles of 21–3
independence referendum 46 retained EU law, and 32–3
Legislative Consent Motions 48 royal prerogative, and 22–3
legislative powers 19, 46–8, 52–3 rule of law, and 28
Scottish Executive 24 Speaker of the House of Commons 16, 19, 69
Scottish Government 46–7 standing 136–7, 141, 192
Scottish Parliament 24, 46 state immunity 116
Sewel Convention 47–8 statutory instruments 20; see also delegated
sovereignty of Parliament, and 24–5 legislation
Supreme Court, references to/ strict liability offences 170
appeals 52–3 sub-judice rule 73, 77
tax-raising powers 46–7 sufficient interest requirement, judicial
West Lothian Question 19, 48 review 136–7
select committees 69 Supreme Court 6, 52–3, 77
225
Index
T legislative powers 49, 52

National Asembly 48–9
torture, inhuman or degrading treatment or Sewell Convention 50
punishment 34–5, 155, 160–1 sovereignty of Parliament, and 24
treaties 71–2, 76 Supreme Court, references to 52
trespassory assemblies 91–3 tax-raising powers 49
Welsh Government 48, 50
U Welsh law, recognition of 49
ultra vires 123–4 Welsh Parliament (Senedd Cymru) 24, 49
unreasonableness 114 Wednesbury principle 113
West Lothian Question 19, 48
witnesses, cross-examination of 122, 172
V
vote of no-confidence 11, 17, 46, 68
W
Wales
devolution 24, 48–9
elections 49
226

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CONSTITUTIONAL AND

Chapter 1 Constitutional Fundamentals and Sources of the Constitution 1

2.3.3 The relationship between the House of Commons and

3.5 Northern Ireland 50

7.1 Introduction to procedure and remedies 132

8.6 Derogations 158

8.18 Article 11 –​Freedom of assembly and association 181

A A and others v Secretary of State for the Home Department [2005]

B B v United Kingdom (2004) 39 EHRR SE19 183

C Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 197

D Da Silva v United Kingdom (2016) 63 EHRR 12 160

E Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710 21

F F (In Utero) (Wardship), Re [1988] 2 FLR 307 159

G Georgia v Russia I (Application No 13255/​07) 153

H H v Lord Advocate [2012] UKSC 24 26

I Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UKSC 61 53

J Jersild v Denmark (1995) 19 EHRR 1 180

K Kay v Commissioner of Police of the Metropolis [2008] UKHL 69 87

L Lavender & Sons Ltd v Minister of Housing and Local Government

M M v Home Office [1993] UKHL 5 64

N Norwood v United Kingdom (Admissibility) (23131/​03) (2005) 40 EHRR SE11 180

P Padfield v Minister of Agriculture [1968] AC 997 109, 110–11, 194

R R v A (No 2) [2002] 1 AC 45  34

R v Dudgeon (1982) 4 EHRR 149 157

R (Miller) v Secretary of State for Exiting the European

S S and Marper v the United Kingdom (2008) (Grand Chamber),

T T v United Kingdom (2000) 30 EHRR 121 169

U Uner v The Netherlands (2007) 45 EHRR 14 175

V Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/​62)

Von Hannover v Germany (No 1) (2005) 40 EHRR 1 198

W Wainwright and another v Home Office [2003] UKHL 53 200

A Acquisition of Land (Assessment of Compensation) Act 1919 23

B Bill of Rights 1689

D Defence Act 1842 8

E Early Parliamentary General Election Act 2019 17

Education Act 1944

F Fixed-​term Parliaments Act 2011 8, 17, 22, 68, 76

G Government of Ireland Act 1920 44

H Health and Safety at Work Act of 1974 159

s 14 192, 158

I Immigration Act 1971 112, 161

L Life Peerages Act 1958 16–​17

M Marriage Act 1949 183

N Northern Ireland (Temporary Provisions) Act 1972 44

O Official Secrets Act 1911 37

P Parliament Act 1694 17

R Referendums (Scotland and Wales) Act 1997 46, 48

S Scotland Act 1978 45

T Taxes Management Act 1970 141

U Union with England Act 1707 47

W Wales Act 1978 48

Y Youth Justice and Criminal Evidence Act 1999

1.1 What is a constitution?

1.2 Classifying constitutions

1.2.5 Formal separation of powers/informal separation of powers

1.3 Core constitutional principles

1.3.1 The rule of law

1.3.2 The separation of powers

1.3.3 The sovereignty of Parliament

1.4 Sources of the UK constitution

2.3.3 The relationship between the House of Commons and

8.18 Article 11 –Freedom of assembly and association 181

B B v United Kingdom (2004) 39 EHRR SE19 183

C Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 197

D Da Silva v United Kingdom (2016) 63 EHRR 12 160

E Edinburgh & Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710 21

F F (In Utero) (Wardship), Re [1988] 2 FLR 307 159

G Georgia v Russia I (Application No 13255/07) 153

H H v Lord Advocate [2012] UKSC 24 26

I Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UKSC 61 53

J Jersild v Denmark (1995) 19 EHRR 1 180

K Kay v Commissioner of Police of the Metropolis [2008] UKHL 69 87

L Lavender & Sons Ltd v Minister of Housing and Local Government

M M v Home Office [1993] UKHL 5 64

N Norwood v United Kingdom (Admissibility) (23131/03) (2005) 40 EHRR SE11 180

P Padfield v Minister of Agriculture [1968] AC 997 109, 110–11, 194

R R v A (No 2) [2002] 1 AC 45 34

R v Dudgeon (1982) 4 EHRR 149 157

S S and Marper v the United Kingdom (2008) (Grand Chamber),

T T v United Kingdom (2000) 30 EHRR 121 169

U Uner v The Netherlands (2007) 45 EHRR 14 175

V Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)

Von Hannover v Germany (No 1) (2005) 40 EHRR 1 198

W Wainwright and another v Home Office [2003] UKHL 53 200

A Acquisition of Land (Assessment of Compensation) Act 1919 23

D Defence Act 1842 8

E Early Parliamentary General Election Act 2019 17

F Fixed-term Parliaments Act 2011 8, 17, 22, 68, 76

G Government of Ireland Act 1920 44

H Health and Safety at Work Act of 1974 159

s 14 192, 158

I Immigration Act 1971 112, 161

L Life Peerages Act 1958 16–17

M Marriage Act 1949 183

N Northern Ireland (Temporary Provisions) Act 1972 44

O Official Secrets Act 1911 37

P Parliament Act 1694 17

R Referendums (Scotland and Wales) Act 1997 46, 48

S Scotland Act 1978 45

T Taxes Management Act 1970 141

U Union with England Act 1707 47

W Wales Act 1978 48

2.5.3.8 State liability for non-implementation of EU law

3.1 The United Kingdom 44