Public law & Human rights

Devolution - cases

Imperial Tobacco ltd v Lord Advocate (challenged lawfulness of tobacco (scot) act 2010 - outside competence banning open display of cig in shops - NO) AxA General Insurance v Lord Advocate (Insurance company challenged Damages (scot) act 2009 beyond legal competence, NO

Jennings three part test for identifying a convention

1. Precedents? 2.Obligation to follow? 3. Good reason for convention?

House of Commons

650 members, 59 scots MPs directly elected under FPTP Chaired by the Speaker, a politically impartial MP who is elected by MPs - power to order proceedings and make sure MPs follow rules of the house. Role - represent the people in the passing of legislation and the scrutiny of Government (power of the purse - authorizing taxation and expenditure sought by gov)

Committee on Standards in Public life

An independent, non-parliamentary body It is sponsored by the Cabinet Office but is non-departmental and advisory in nature It is chaired by a cross-bench peer The Committee is under a duty to report to the Prime Minister on issues relating to standards of conduct of al holders of public office The Committee has a broad remit which covers issues about how to promote ethical standards

Devolution and the structure of the United Kingdom

Asymmetrical devolution of powers in UK Devolution - Central Government provisionally gives competence to regional governments Federalism - exec areas of competence for central and regional govs. Court ensures each level of gov within area Scotland - Quasi-federalism? (Bogdanor)

Statute and prerogatives case

Attorney General v De Keysers Hotel (Government purporting to seize private property under prerogative powers But, statutory powers on issue also existed under the Defence of the Realm Act 1916 The House of Lords (court of 5) unanimously rejected the Government's argument that it could choose whether or not to rely on statute or prerogative Statute prevails: a consequence of parliamentary sovereignty)

The Cabinet - case

Attorney General v Johnathan Cape (The Cabinet Office refused permission for the diaries of a former cabinet minister 10 years since the meetings - The Attorney General sought an injunction against publication to preserve confidentiality - refused, the time lapse diminished the public interest in maintaining the convention of collective confidence in this instance)

Dissolution of Parlaiment

Before each election, the Queen will dissolve Parliament under royal perogative

Westminster Parliament

Bicameral - Chambers adversarial in design - Government is drawn from Parliament (fusion of powers) House of lords 820 unelected House of commons 650 elected Election cycle fixed in statue - every 5 years (past the post voting system makes majority gov more likely) Ministers requited to be MPs by convention not statute. Fixed-term Parliaments act 2011 (parliament elected every 5 years)

Standards in Public life (CSPL)

Cash for questions scandal in 1990s = Nolan Committee on Standards in Public Life Identified in 7 principles of public life Resulted in creation of the Committee on Standards in Public life in 1994

House of Lords general committees

Committees subject based, not departmental based e.g. EU select Committee

The Royal Prerogative

Common law powers of the Crown Uncodified: power of uncertain extent Independent of statute: an exercise of prerogative power does not need to be validated by statute or otherwise approved by Parliament Residual: Parliament - by statute - can restrict or remove, but cannot create, new prerogative powers

Taming the Prerogative

Constitutional Reform and Governance Act 2010, ss.20-25: treaties must now be laid before Parliament for pre-ratification

Royal prerogative principles? case

Council of Civil Service Unions (The legality of a Ministerial instruction (prohibiting members of GCHQ from joining a trade union) which was issued using discretionary powers conferred by prerogative legislation (an Order in Council) was challenged - Royal Pre. in principles subject to review, but gov acted lawfully)

Committees of HoC

Departmental Select Committees (introduced 1979) Each committee has 11-16 backbench MPs as members and is cross party (proportionate party balance) Inquisitorial in nature - hear oral/written evidence Gov obliged to respond to Committee reports but do not have to accept their recommendations, purely advisory

Rule of law - Government under the law (core meaning of the rule of law) cases

Entick v Carrington (order of Halifax lord, sec of state, king messengers arrested Entick - no express authority in law for the messenger's warrant. NO - court expressed legal authority needed for any interference with a person or their property) Malone v Metropolitan Police Commissioner (M phone tapped, warrant issued by home sec. Argued unlawful to tap - Not prohibited by law so Gov could do it)

Recall Power - Cons

Fears of system manipulation: marginal seats could become targets of organised campaigns by political opponents to eject MPs Risk that MPs could be punished by voters for making unpopular political decisions - fears it may deter MPs from making hard choices Cost of managing recall system: burden on local authorities required to manage the processes

Scottish Parliament - Checking Gov

First Minister's Question time - Thursday whilst Parliament is within session Scottish Parliament is a committee-based legislature: Committees have a heavy workload than in the Westminster Parliament because there is no upper chamber Committees are inquisitorial in nature and may even initiate legislation

Recall Power - Pros

For: Gives power to the electorate to remove MPs for gross misconduct May encourage MPs to meet minimum standards of behaviour, thereby raising the overall standard of MPs Without recall law, voters must wait until the next election to express their opinion on performance of sitting MPs - power therefore gives voters a more powerful voice

The Central Government - PM

Head of Her Majesty's Government (David Cameron) Conventional post: combines posts of First Lord of the Treasury and Minister for the Civil Service It is by convention that the Monarch choses as PM an MP It is also by convention that the Monarch must appoint as Prime Minister the person most capable of commanding a majority in the House of Commons (i.e. leader of the political party with the majority of seats) Developing Office of Deputy Prime Minister

The UK Parliament - House of Lords history (S/A convention)

House of Lords Act 1999 (removed all but 92 hereditary peers reduced from 1295-675. Can lose peerage if you do not appear for years, prison sentence for year death exception) House of Lords reform Act 2014 (Now has select committee but not departmental based, shadow. Dealing with topics/scrutinizing those subjects) Salisbury - Addison convention (must not strike down manifesto bill at 2nd reading or introduce wrecking amendments, bound by convention)

3 principles

Institutions Three functions of government must be exercised by separate institutions Personnel People should not belong to more than one of the institutions / perform more than one of three functions Non-interference Institutions should not interfere with one another's performance of their functions

Recall of MPs Act 2015

Introduced mechanism to recall MPs for the first time, triggered by sentence of imprisonment/suspended from the Commons for a period. Speaker gives notice triggering the opening of a petition in the MP's constituency (s.5) Electors then have 6 weeks to sign in favour of recall (s.9) At least 10% of registered electors in the constituency must support recall in order for the seat to be vacated and a by-election then held (s.9) The recalled MP is entitled to stand again in the election

Treaty of Union - fundemental law?

Is the sovereignty of the Westminster Parliament limited, in that it cannot create statutes inconsistent with the Treaty of Union? Dicey = No English Judges = No But Lord Cooper says 'maybe' - Gibson v Lord Advocate, mention by Lord Keith

Judicial Review with prerogative powers and case 5

It has been long established that the courts can determine both the existence and extent of prerogative powers. Historically, however, the courts have been unwilling to review the exercise of prerogative powers. Case of the Five Knights (The court cannot review the exercise of prerogative powers. It can only determine the existence and scope of prerogative powers)

Devolution - Scotland History

Kilbrandon Report 1973 Scotland Act 1978 (no effect, repealed) Scotland Act 1998 Sewel Convention Know Thoburn + H v Lord Advocate Scotland Act 2012 (gives tax raising powers for 2016) Referendum - 55.3% No 2015 act Scotland Bill, HL Bill 73 (Amend 1998 act) = Scotland Act 2016 - sewel into law, gov not temporary, permanent institution

Competing definitions of a constitution

King - a basic set of rules and common understanding Ridley - four characteristics of a constitution: 1)It establishes the system of government and is thus prior to it. 2) It is created by an authority outside of and thus higher to the system it establishes i.e. the people 3) It is therefore a form of law superior to other laws - judicial review of ordinary legislation therefore possible 4)It is entrenched because it is established by a higher authority and because its purpose is to limit government power Griffith - everything that happens is constitutional

Bicameralism - issue with Scottish Parliament (Calman commission)

Legislation requires more scrutiny - raised in Calman Commission but concluded against since: Scotland is a small country Workload does not justify a second chamber Just unnecessarily complex and expensive Alternatively - strengthen the role of Parliamentary committees in revising draft legislation

Legislative and Executive devolution

Legislative - Devolution Transfer of legislative powers from central government to subordinate government (Scotland) Executive - Devolution Transfer of policy-making and administrative decision-making from central government to subordinate government (Wales)

Separation of powers

Legislative - executive - Judicial Three principles: separation of institutions; separation of personnel; non-interference with each other's functions Rationale: template for constitutional design; protection of liberty; efficiency Barendt: partial separation of powers; checks and balances

Constitutional Reform Act 2005

Lord Chancellor used to be a member of all three branches - part 2 now no longer, transferred judicial function to the President of the courts of Eng/Wal No longer speaker of the house of lords Part 3 (UK Supreme court) - No longer a committee of the house of lords. Lawlords (now justices of Sup court) barred from participation in Parliament Judicial appointments commission part 4 - a new commission to select and recommend potential judges, not Lord Chancellor

The House of Lords

Lord Speaker chairs debates and gives advice to procedure (who is elected and politically impartial) Role weaker than HoC counterpart - no power to select Q's or amendments No fixed membership but around 820 (Lord Temporals - 675 peers, 92 hered.) eligible to sit (Lords spirituals 26 senior bishops of Eng church) - Appointment is for life, not revocable. Members of HoL are disqualified from membership of HoC but not hereditary peers who are no longer members of HoL s1 HoL Act 1999 Life peers - specific expertise not reflected in membership of HoC - better scrutiny?

Executive prerogative powers

Making/ratifying treaties Governance of overseas territories The deployment of armed forces overseas - including armed conflict, declaration of war Use of armed forces within UK Appointment and dismissal of Government Ministers (exercised by PM)

Rule of law - Government under the law - continued

Malone v United Kingdom (violation of Art 8- English law fails to provide a minimum degree of protection entitled under the rule of law) R v Mullen (deportation case - deported to Uk when arrested in Zimbabwe, claim forcibly brought there and extradition was illegal. Held - illegal act, hence quashed)

Factortame saga DISAPPLY NOT INVALIDATE

Merchant Shipping Act 1988 (UK) (only British ships may fish in British waters) vs The Treaty of Rome 1957 (EU) (Art 7 no discrimination on nationality) Factortame (No 1) (Spanish fishing companies sought: A declaration that the Merchant Shipping Act is inapplicable Interim relief: suspension of Merchant Shipping Act Held: There was no authority under British law for the courts to temporarily suspend an Act of Parliament Matter referred to ECJ for clarification Factortame (No 2) (Referral to ECJ: ECJ rules that, as a matter of EU law, British courts must temporarily suspend Acts of Parliament if necessary Case returns to House of Lords (Factortame (No 2)): House of Lords issued an injunction temporarily suspending the Merchant Shipping Act )

Scottish Gov formation

Mixed electoral system designed to reduce likelihood of majority government in the Scottish Parliament Since Devolution, Scotland has experienced coalition, minority and majority governments The First Minister must be nominated by the Scottish Parliament within 28 days; nominee then recommended to the Queen for appointment (Scotland Act 1998, s.46(2)) Parliament must agree to the appointment of Ministers by the First Minister (Scotland Act 1998, s.47(2)) Also s30 - governing powers of Independence referendum

Constitutional conventions

Non legal but politically binding, acting against unconstitutional but not illegal (courts cannot enforce). e.g. Executive - PM must belong to HoC Parliament - Parliament will not legislate on devolved matters Monarch - must give royal assent to bills passed by both houses

The Central Government - Special Political Advisers (SPADs)

Not ministers, but chosen by ministers and they lose their position when a minister leaves office Position regulated by the Constitutional Reform and Governance Act 2010 Section 16: annual reports must be laid before Parliament about the use of SPADs by government ministers

Scottish Parliament and Government - The Scotland Act 1998

PART I: The Scottish Parliament Section 1(1): 'There shall be a Scottish Parliament' PART II: The Scottish Administration Section 44(4): 'There shall be a Scottish Government' (formerly 'Scottish Executive', reformed by the Scotland Act 2012, Part II) PART III: Miscellaneous and General Sections 98-103: Juridical (i.e. the role of the courts)

The Cabinet

PM leads Cabinet, 21 Cabinet ministers chosen by PM Collective Cabinet Responsibility - A constitutional convention which stipulates that all members of the government speak and vote with one voice (unless there is an agreement to differ) Confidentiality principle + Confidence Principle (retain public confidence)

Dicey definition of Parliamentary Sovereignty with cases

Parliament has the power to make and unmake any law whatever (cheney v conn) No court or other body has the power to invalidate a law made by Parliament (Pickin)

Exclusive cognizance

Parliament has the right to determine its own rules/procedures (protects constitutional principle of sovereign Parliament) Used to exclude Hansard

PARLIAMENTS AND GOVERNMENTS: CENTRAL, DEVOLVED AND LOCAL INSTITUTIONS - Functions

Parliament's legislative function - to make laws (Act of Parliament) although exec can also have those powers if conferred to make delegated legislation and some law making powers remain under royal prerogative Others: Debating - On matters of public importance, free votes on conscience issues like abortion Facilitating - enabling governments to work by passing laws giving effect to their policies, e.g.voting to approve monies needed to implement them Checking - Scrutinizing how Government acts, e.g. debating laws, challenging ministerial conduct

Exclusive cognizance - Not inquire into process behind enactment of legislation case

Pepper v Hart (relaxed, now allowing reference to Hansard records used by courts to interpret statute, understand ambiguity) Subsequent cases have sought to limit use of Hansard in legal proceedings (reports of parliamentary proceedings are protected by privilege - Parliamentary Papers Act 1840)

Types of Prerogative power

Personal prerogatives of the Queen (granting honours, appointing the Prime Minister, possessing swans etc) - exercised within limits of conventions; and Crown prerogatives exercised by Government Ministers: ministerial executive powers such as declaring war or use of armed forces outside/in UK

Bills of Rights 1689 Article 9

Privilege enshrined: the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament Although, NOT freedom of speech under Art 10 ECHR, right accorded all individuals

Political Accountability and the Royal Prerogative problems

Problems with lack of a definitive codified statement describing the prerogative powers of the Crown (Rule of law - law open/clear/accessible Raz. Pre. powers obscure/unlisted/inaccessible) Problems with ministers being under no obligation to record and report to Parliament each exercise of the Prerogative, or to seek Parliament's prior permission for its exercise (Scrutiny depends upon individuals bringing judicial review or MPs/Lords in Parliament proactively challenging ministers to explain and defend use of prerogative powers - Parl. oversight limited)

Functional overlap - problem in constitution (executive sentencing) case and judicial review of exec. action case

R (Anderson) v Secretary of state for the Home department Fire Brigades Union case (rise of judicial review of exec. action)

Rule of law - independent and accessible courts/sep of powers, art 6 case

R (Anderson) v Secretary of state for the home department (murder conviction trigger mandatory life sentence - judge set tariff 15 years, home sec to 20 using an act. Home sec not judge, Art 6(1) violation. YES - should have independence from executive)

Post Factortame - European Union Act 2011, s18

R (HS2 Action Alliance Ltd) v Secretary of State for Transport EU Directive 2011/92/EU sets down public participation requirements for major transport decisions, including HS2 high speed rail network Decision on HS2 to be made according to 'hybrid bill' parliamentary process Question: Was the hybrid procedure compliant with the EU directive? - Kinda, did not realize ECA 1972 would be such a bitch Supremacy of EU law not applicable, uses UK act

The UK Parliament - MP freedom of speech (Art 9 of Rights 1689)

R v Chaytor (3mps/1 peer charged false accounting over expenses claim, argued art 9 bill of rights protecting from prosecution. Extent of Parliamentary Privilege IS a matter for the court - expenses claim form not within scope - not core business)

Functional overlap - problem in constitution (judicial law making)

R v R (husband could not be guilty of raping wife, changed mind. Raised Q's on process - up until then not illegal, issues of separation of powers. Courts make law?)

Prerogative powers case

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority (Case concerned a challenge to the legality of supplying plastic bullets and tear gas to the police The Court of Appeal said that such an action was authorised by the Police Act 1964 The Court also identified a prerogative power pertaining to maintaining public order - part of the broader prerogative 'to maintain peace in the realm' Ensuring a supply of plastic bullets and tear gas fell within this broad power Criticism of case: judges 'discovering' a previously unidentified prerogative)

The Scotland Act 1998

Scotland Act 1998: Reserved powers to UK: constitutional issues like Queen, foreign policy, defense, employment, energy, abortion - Schedule 5 Off limits - incompatible with EU/UK/ECHR (s29(2)(a)) specific acts sch 4 No remove Lord Advocate s29 (2)(e) CAN do - arts/culture, education, agriculture, local gov, NHS. s30 - Orders UK gov authorized to expand powers of the Scottish Institutions by Order in Council (Statutory instrument) to vary terms under Sch 5 s28 (7) - (7)This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland (although Sewel - not without consent) s29(1) - Acts of the Scottish Parliament that fall outside the competence of the Scottish Parliament are not law: Judges therefore have the power to strike such Acts down s101 - Interpretation fo acts (within the competence read narrowly) - Quasi Federalism?

Statute and prerogatives

Statute cannot create new prerogatives Statute may regulate a field where a prerogative also operates If they conflict, statute prevails: parliamentary sovereignty Ministers must use statutory powers, not the overlapping prerogative powers. R (Bancoult) v Secretary of State for Foreign Affairs (No. 2)

Comparing Statute and Prerogative - statute

Statute: Created by Parliament Parliament debates, scrutinises, and enact statute: proactively creates the power New powers created continually in new statutes Acts of Parliament are at the top of the hierarchy of legal rules under the constitution (albeit subject to EU Law) Prerogative: Residual: pre-date modern Parliament Parliament calls ministers to account for use of prerogative: a reactive role No new prerogative powers can be created Prerogative powers can be abolished or restricted by Acts of Parliament

Restrictions on the Power of the HoL

The House of Lords is bound by the Salisbury-Addison Convention: the House of Lords must not strike down manifesto bill at 2nd reading, or introduce 'wrecking amendments' The House of Lords has no veto over primary legislation: Parliament Acts 1911 and 1949: Money Bills - if passed by the Commons and not passed by the Lords without amendment within 1 month of arriving at the Lords, will nevertheless become law (s.1) Non-money Bills - if passed by the Commons but rejected by the Lords in 2 successive sessions (parliamentary years), it will nevertheless become law (s.2) See Jackson v Attorney General But, the Lords does currently retain a veto over delegated or secondary legislation

Parliament structure

The Monarch The House of Lords The House of Commons

Scottish Parliament - election cycle

The election cycle for the Scottish Parliament is fixed by statute (Scotland Act 1998, s.2): the first Thursday in May, every fourth year (1999, 2003, 2007, 2011) But, the Fixed-term Parliaments Act 2011, s.4(2) shifted the next election to the Scottish Parliament to May 2016 in order to avoid a clash with the UK General Election in may 2015; thereafter, elections to the Scottish Parliament will revert to the normal 4 year cycle

Scotland and Sovereignty

Treaty of Union: Article III (created a new UK Parliament) Article XVIII (preservation of a mixed legal system) Article XIX (Scottish and English courts remain distinct) Open question whether Articles XVIII and XIV of the Treaty of Union takes priority over inconsistent Acts of Parliament Non-legal constitutional limits restricting Parliament's law-making powers on devolved matters

2 distinguishing characteristics of a UK constitution

Unwritten (uncodified) and unentrenched

EU law - ECJ

Van Gend & Loos (direct effect - dutch haulage company - custom rules infringed EU treaty - some enforceable rights created by treaties) Costa v ENEL (principle of supremacy - Italian electricity law inconsistent with EU treaty - EU law prevails)

Devolution - comparison

Wales - less extensive - Government of Wales Act 1998 (no legislative devolution/primary law making powers) Government of Wales Act 2006 (creates separate legislature/executive - 20 subject ares off limits, sch 7), changed 2015 draft bill to more like Scotland, with reserved matters list Northern Ireland - Northern Ireland Act 1998 (similar to Scotland but sec. of state can suspend assembly and the exec. and reinstate direct rule of UK Gov) England? - The West Lothian Question (scot mp's vote on english only law but not the other way around - right?) EVEL (english veto almost within devolved legislative competence)

Peripheral meanings of the Rule of law

the law should be capable of guiding citizens (Raz); - Prospective (SW and CW), open and clear (Gillian v UK) and Applied by accessible and impartial courts (Anderson) ,,,,,,,,,,,,,,the law should protect human rights (Lord Bingham)

Elliott and Thomas' four functions of a constitution

1. Allocation of power 2. Accountability 3. Permanency 4. Legitimacy and consensus

Adam and Tomkins' three functions of a constitution

1. Create institutions of state 2. Regulate relations between institutions 3. Regulate relations between institutions/individuals

Two main privileges of MPs/Peers

1. Freedom of Speech 2. Exclusive cognizance

Sources of the constitution

1.Legislation (statute) 2.Judge made law (common law and constitutional principles like rule of law/separation of powers) - Entick 3. Constitutional conventions Others - royal prerogative; law and customs of Parliament; works of authority; EU law; ECHR

Rule of law infringed? cases

Burmah oil Co ltd v Lord Advocate (damaged to property by UK WWII, H of L enacted war damage act for compensation with retrospective effect - infringement? Rule of law trumps Parliamentary Sovereignty?) - Presumption against retrospective effect, phillips v eyre AXA case

Parliamentary Sovereignty principles cases and the courts

Cheney v Conn (nuc tax money fund) British Railways Board v Pickin (1968 bill changed law to pickin problem)

Westminster - Checking Government

Convention of Ministerial Responsibility: A constitutional convention which stipulates that Government Ministers are accountable to Parliament for their decisions and actions PMQ's - PM faces questions from MPs at 12 noon Wednesday whilst Parliament is in session Select Committee System - Deigned to scrutinize each government department; chaired by opposition MPs; powerful and prominent political roles e.g. Public Accounts Committee

House of Lords Appointments Commission

Created 2000 Designed to counter cronyism Usually appoint cross benchers (chaired by a peer)

IPSA

Created by The Parliamentary Standards Act 2009 s3 Independent of Parliament, gov and political parties. Role - Regulate all MP's expenses, replacing the discredited self-regulation regime

Constitutional change?

Due to recognition of Human Rights - limit to government power, against doctrine of parliamentary sovereignty

Constitutional conventions case

Evans v Information Commissioner (Prince Charles advocacy correspondence)

Fixed-term Parliaments Act 2011 (FTPA)

Fixed 5 year intervals Early election is: 1. 2/3 of MPs support a motion of calling for an early election 2. The Government loses a vote of no confidence (simple majority) Either situation, if a new gov is not formed in 14 days an election will be held

Can judges bind Parliament?

H v Lord Advocate (Inconsistencies with Scotland Act 1998 and Extradition Act 2003? Imply repeal Scot? CONSISTENT and not implied repeal since of 'fundamental constitutional status'

PS and entrenchment cases

Jackson, thoburn, H v Lord Advocate

Parliamentary Sovereignty and the courts - continued

Jackson v Attorney General (Hunting Act 2004, Parliament Act 1949 v 2004 valid? VALID)

Joint Committee of both Houses?

Joint Committees on Human Rights (JCHR), set up after HRA 1998 To scrutinize legislative proposals to ensure compatibility - however no power to block bills

Legal vs Political Constitutionalism

Legal - some values so fundamental so treated higher - enforceable by the courts against ordinary laws, courts enforce constitutional rights Political - Determine exercise/distribution of gov power, political process legit way of preventing unconstitutional behavior since democratically elected. Courts play limited role since unelected.

Rule of law - equality before the law case

M v Home office (Political asylum Zaire, arrival Uk rejected by home sec, contempt of court brought against sec for ignoring mandatory order issued by high court.) - Judge had jurisdiction to make order, and appropriately.

Effect of Free Speech Guarantee

MPs cannot be sued for defamation for words spoken in Parliament (cannot be used as evidence to support suit) Reform permitted as result of 'cash for questions' scandal of 1996

Scotland and Sovereignty - A UK constitution? case

MacCormick v Lord Advocate (ERII on scottish post box - only one Queen Elizabeth for Scotland, two for England. UK NOT England - inconsistent with Act of Union 1707, prevail over Royal Titles Act 1953? NOT INCONSISTENT)

Rule of law history

Magna Carta 1215, s39 + 40 (deny right to justice) Habeas Corpus Act 1679 s1 (legality determined of detention in court - judicial scrutiny) Bill of rights 1689 (royal action without parliament consent illegal) Constitutional Reform Act 2005 ECHR

Government Departments

Ministerial departments are headed by Secretaries of State, structure not fixed in law

The central Government - definition

Ministers of the crown, may include civil service like police or Government agencies like UK Border Agency

Accountability of Ministers

Ministers responsibility may require resignation in consequence of departmental maladministration Ministerial accountability to Parliament requires openness and the provision of full and truthful information 'Ministers have a duty to Parliament to account, and to be held to account, for the policies, decisions and actions of their departments and agencies.' Ministerial Code, 2010, para.1.2.a

Sources - 1. Statute

Mosts acts of Parliament based on PS - No constitutional hierarchy e.g. Acts of Union Devolution legislation Scotland Act 1998 House of Lords Act 1999 Representation of the people Act 1983 Constitutional reform act 2005 European communities act 1972

Parliamentary Privilege

Protection granted to parliamentary proceedings such as debates, committees votes and hearings. Gives MPs/Peers immunity from legal proceedings for words spoken in Parliament

Personal Prerogatives examples

Right to advise, encourage and warn Ministers in private (the Queen has a weekly meeting with the Prime Minister) Appointment of Prime Minister Summing and proroguing Parliament To give assent to legislation

Non-conventions

The Prime minister's retreat at chequers PM Question time (used to be 15 on tue/thur now blair 30 min wed)

Sources of Government power

The Rule of Law requires positive authority for the exercise of all government power 1.Statute 2.The Royal Prerogative 3.Third Source Powers A.V.Dicey - 'The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.'

Individual Ministerial Responsibility

The accountability under convention of each Minister to Parliament for the function of his or her department Ministers are responsible for broad policy and its implementation, as well as for the minister's personal involvement in departmental work Ministers not responsible for the failings of those within their department delegated to implement the detail of their policies etc

Purpose of Parliamentary Privilege?

The purpose of this protection is to protect representatives' freedom to engage in dialogue in Parliament and to secure the independence of Parliament The protection of parliamentary proceedings is therefore vital to the constitutional order NOT constitutional convention - part of laws and customs and are LEGALLY ENFORCEABLE GUARANTEES which override ordinary legal rights

EU vs Parliamentary Sovereignty

Thoburn v Sunderland City Council Laws LJ para 69 (1) All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: (2) The ECA is a constitutional statute: that is it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers.'

Constitutional statute and Scotland Act 1998

Thoburn v Sunderland City Council [2003] QB 151 Laws LJ: 'constitutional statutes' can only be expressly repealed, not impliedly repealed Examples: European Communities Act 1972, Magna Carta 1215, Bill of Rights 1689, Act of Union, Scotland Act 1998 H v Lord Advocate [2012] UKSC 24 (obiter) The Scotland Act 1998 cannot be impliedly repealed because of its 'fundamental constitutional' status

Institutional Overlap - Crown vs Parliament

Tomkins (Parliament/roundheads vs The crown/cavaliers) Tripartite division of power (the separation of powers) does not reflect constitutional history of the British constitution Separation of powers doctrine emerged in the 18th century - Montesquieu, US Constitution Constitution emerged in the 17th century in the wake of the English Civil War between the King and Parliament (Crown vs. Parliament) Constitutional settlement between Parliament and the Crown - 'bi-polar separation' Courts derive their constitutional power from the Crown - formal and symbolic ties, therefore not treated as a separate branch

Fusion of powers

Under the British constitution the executive (the Government) is drawn from the legislature (Parliament) Constitutional Conventions: Ministers are drawn from Parliament and are accountable to Parliament for their actions

Scottish Parliament

Unicameral - designed to be less adversarial 129 MSP's - Government drawn from Parliament Election cycle fixed by statute - every 4 years Ministers required to be MPs by statute not convention