[WEEK ONE (Lecture 1 and 2 notes on I-pad)]

WEEK TWO

Lecture 3: Sources of UK Constitutional Law

Legislation- first source of constitutional law

 Bill of rights etc.

Referendums
 Not required by law, only enacted when citizens see fit, when its politically convenient
 HRA 1988, no rule for referendums being required, but they may be held before a
significant constitutional change can happen

Delegated legislation
 Statutory instruments, rules made by ministers under power delegated to them under the
parliament
 Subordinate/secondary legislation

Case law
 Decisions of the courts constitute an authority in con law in two principles contexts
 Cases decide/ give authority to common law principles, and towards judges to interpret
meaning and application of statute
 Entick v Carrington aka the great case: defined common law principle
 Cases also recognize and regulate the exercise of prerogative power which is the power
that the common law recognize as vesting in the crown 
 Almost all prerogative powers are exercised not by the crown itself but by minsters acting
on behalf of them e.g., ministers under the crown makes treaties (foreign minister, PM
etc.)
 Common law recognizes the prerogative of the crown to appoint the PM

International Law
 UK law not just influenced by international law, but also takes on and adopts norms of
international law
 Main example is human rights law drawn from the treaty of ECHR which UK is bound to
by. It’s not part of EU law (but by Eu council of Europe) so even though Brexit happened
the UK is still bound to the ECHR

Constitutional Conventions
 Not all of what we call UK law is of legal character
 Constitutional conventions (not strictly speaking law, but rules of legal behavior)
 Definition: a binding but non justiciable (not enforced by court) rule (prescribe what
SHOULD happen) of constitutional behavior

Examples of conventions
 Having a prime minister, no law that says there shall be a PM
  The cabinet, PM appoints the cabinet and who is in it and what they do 
 Doctrine of collective ministerial responsibility (ministers are bound by govt policy if a
minster disagrees with or cannot support govt policy he must resign)
 Individual ministerial responsibility (ministers are accountable to parliament for their
policies decisions and actions and for the policies decisions and actions of their
department) 
 Both these egs, are not rules binding by law but adopted constitutional convention rules

The close relations of law to convention

 Constitutional convention amplifies constitutional laws, sit beside them, not contradicting
them
 For example, the Law says: no bill may become an act until it’s been passed by
parliament and been given royal approval (called the royal assent)
 Whereas the convention says the king will not withhold his assent to a bill passed in
parliament
 The law says the king may appoint anyone or no one to the office of PM
 The convention says the king will appoint as PM the person who commands the
confidence a majority vote of the house of commons
 Just because constitutional convention isn’t enforced by courts, doesn't mean they are not
enforced. If someone breaches these rules, they are acting unconstitutionally
 They are enforced by other actors constitutionally not courts but civil service, advisors
and counselors of state, and parliament will enforce these rules

Conventions: Do they work??

 Some lawyers think not because rules are best enforced by court
 What happens when they are breached
 Has the constitution changed? Or is the behavior unconstitutional 

Judicial enforcement of conventions??

 Even though courts don't technically enforce constitutional convention breaches, it
doesn't mean they are completely ignorant of them
 Scotland act of 1998 (Sewel convention): it is recognized that the parliament of the UK
will not legislate about devolved matters without the consent of the Scottish parliament.
This is recognized and echoed as
legislation                                                                          
 R Miller v sec of state said that bc the Sewel convention (Scotland 1998) is recognized in
statute that means that courts should enforce it and rule that parliament had acted
unconstitutionally. Yet the court says even a convention that is recognized in statute is
still just a convention- not a law and not justiciable 

Judicial recognition and use of conventions

 Classic case: attorney general v Jonathan cape 1976
 New authority case: Evans v information commissioner 2012
Two points
1. Just bc conventions aren't legally justiciable, does not mean they are not enforced
2. Just because they are not dealt with by courts, does not mean they are not recognized and
used/relied on by courts in the making of their decisions of law

Three matters to bear in mind

 All constitutions rely on conventions (not just the UK) no written constitution is a
complete code
 Conventions remind us that the constitution comprises both legal rules and political
norms. Cannot understand their legal side unless you get a whole picture of their political
side as well
 Conventions are based on traditions, things that routinely happen bc people feel bound to
do that thing (we have a PM today because we've had a PM for so long!!) is that a recipe
for change and fluidity or is it more so a matter of continuity and lack of progress
                                                                                                                                                            
                                                                                                                                                             
                                                                                                                                                             
                                            
Lecture 4: Separation of Powers

Basic Idea: the state can be separated into 3 branches, the legislative branch, executive branch,
and the judicial branch. Each of these branches have functional differences; to legislate,
executes, and adjudicates.

Historical Context (a modern and enlightened 18th century idea- animated the French revolution
and American constitution: Montesquieu spirit of the law, and Madison the federalist papers

- Within these three branches there are two further separations: a separation of
functions and a separation of personnel (people who do each of these different
functions should not be the same people)
- These branches should all check and balance each other (Madison in federalist)

1. Legislate (Parliament): to make law, legislation. The enactments of law, like statutes,
and acts of parliament.
2. Executive (Administration): to run the government, execute the law, be the
administrators of government cabinets
3. Adjudicative (Judiciary): making judgements under the law. Courts staffed by judges
who are distinguishable due to their unction and their personal from government and
parliaments

Why do we separate powers? - Two reasons

a) Guards against tyranny: it is all about freedom, when all the power of the state are
collected in the same body (when who makes AND executes AND adjudicates the laws is
all the same governing body, tyranny arises)
b) Protects our liberty: liberal justice, protection of freedom under government

The UK Constitution: not based on a separation of powers, we have separate institutions, which
perform functions like the functions of the separate 3 powers of the USA. There are ideas of Sep.
of powers within our government, but our legal system was not BASED on the seep of powers. It
wasn’t historically important in the UK, but it is becoming more important here

- Instead of being based of Sep. of powers, the UK was based on the idea of the
mixed constitution not a modern idea like Sep. of powers, but an ancient idea
from Aristotle
- The mixed constitution ideals are based on existence and distinctions between the
monarchy, aristocracy, and democracy. The UK was based on many of these
monarchical, aristocratic, and democratic ideals. Has had many monarchical and
aristocratic ties, usually country has been run by the rich

In the 19th Century- constitutional contributions

- Bagehot The English Constitution: ‘the close union, the nearly complete fusions
of the executive and legislative powers’
 - He didn’t believe that separation of powers is needed in the UK, and that it is only
needed in America and France
- He says we don’t have a separation of powers; we have a close union of powers.
He says all those branches should work together

The lack of separation of powers in Britain

- The position of the Lord Chancellor (used to be head of judiciary and senior govt
minster in the cabinet, and in the House of Lords) an example and embodiment of
the lack of separation of powers in the UK
- The Appellate committee of the House of Lords: used to all be senior judges in
the senior most court and they were all members of the legislature
- Constitutional Reform Act 2005 and the UK Supreme Court made the UK powers
more separate and less fused, but we still have some exceptions even today
1) Common law law-making
- Common law case law is a source of constitutional law
2) Executive rule making
- Makes immigration rules etc.

The rise of the separation of powers in Britain

Stage 1: safeguarding and separating judicial power from parliamentary government

- The Independence of the Judiciary: Senior Courts Act and Constitutional form
Act 2005---judges can’t get fired and are tenured during good behavior. Protects
their independence.
- Mathews vs Ministry of Defense: important case on safeguarding access to justice
- Sentencing Powers: R(Anderson) case

Stage 2: Safeguarding Parliament from the executive

- R v Home Secretary: parliament said were changing the way victims of serious
crimes are compensated, executive said no you’re not
- R (Miller) v Prime Minister: court safeguarding parliament from the executive.
Exemplifies a rising importance attached to a separation of powers in Britain

“The old constitution was based upon the sovereignty of parliament. The new constitution is
based on the idea of a constitutional state based upon a separation of powers”
WEEK THREE

Lecture 5: The UK Parliament Part 1

The composition of the UK parliament, its functions, and the legal concepts that governs the UK
Parliament- that being the sovereignty of parliament
Composition: UK Parliament- Westminster.
Bicameral parliament in structure- The House of Commons and The House of Lords

The House of Commons: The Lower House, 650 members, elected at least every 5 years,
members of house of commons called MP’s (MP doesn’t mean House of Lords people, only
Commons)
- Elected democratically, mode of legitimacy is that they have been voted in.
Unlike the King, the judiciary, or the House of Lords
- Dissolution and calling of Parliament Act 2022: this act is authority for the law
that parliament must be dissolved on the 5th anniversary of the day which it first
met (once elected, a parliament can survive for only 5 years if it hasn’t been
dissolved earlier than that. Then a new parliament can meet after there has been a
fresh election to deiced who its members shall be)
- The authority to dissolve parliament is a prerogative power of the crown. Only
the monarch can dissolve parliament (if done, will trigger a general election) but
nobody can question that decision in court.
- However, it is a constitutional convention that the monarch will not call to
dissolve parliament unless the prime minster asks him to do so. If the king is
asked to dissolve parliament by the prime minster and doesn’t do so, even though
it’s a constitutional convention, it cannot be upheld in court (non-justiciable)

The Electoral System: we use an electoral system called First Past the Post- simple and easy to
understand. Country has 650 constituencies; each MP represents a constituency, and each
constituency are broadly similar is the number of constituents. They all elect their MP’s, and to
win as an MP, all you must do is win more votes in your constituency than any other
candidate, you don’t need the majority of the population of constituents, just more than
anyone else.
- Strengths- easy, simple to understand
- Limitations- not very representative of the majority in government

The Alternative Vote System (and Proportional Representation)

- The number of seats a party wins in an election should be the number of votes
they get, example; you get 40% of the seats in parliament if you win 40% of the
votes
- Limitation: no party would get a full majority in the house of commons with more
than half of the seats which is what you need to be the party in power. This is
because it’s rare for more than 50% of the electorate to all vote for the same party,
so you would have to form coalition governments (which are slow)
- There was an AV vote referendum in 2011, majority said no, keep FPTP
The House of Lords: very different function from the House of Commons. To get anything
done in parliament you need agreement and support from both houses. It is entirely unelected;
some are members of the House of Lords because they have inherited their title. Used to be the
majority that were elected that way, but now it’s only some of them that are hereditary peers.
The hereditary peer’s quota is capped at 90 due to- life peerages act 1958. Everyone else is
appointed (which is rather modern), but they are appointed for life, no re-appointments, or fixed
terms. Yet now, when you die, your peerage is not inherited by anyone else, it dies with you.
- Hereditary peers; 90
- Appointed peers; 680
- Bishops (Lords Spiritual); 26
Who appoints them: Sometimes the prime minister, sometimes the leader of the opposition. Most
always these will be party peers’ nominations. You can apply yourself, but only 2 or 3 members
are appointed to the House of Lords that way. The House of Lords appointments commission
reads applications from the public, but it is a very hard position to get through merely applying
while being a member of public.
- Technically has no legitimacy since it is completely unelected. It is very
uncommon for this large of a parliamentary body to be unelected. Most other
countries do not run their upper house this way
- But constitutionally- they aren’t illegitimate because the UK constitution gives
authority and legitimacy to three different classes of government, democracy,
monarchy, and aristocracy
- The unelected nature of the House of Lords is given constitutional legitimacy
through its aristocratic nature, aristocratic not in terms of being landed gentry but
instead meaning the rule of the “few and the wise”

Reform of the House of Lords: Many think it should be reformed, since it is undemocratic. It
has been reformed in the past
- House of Lords Act 1999; removal of all but 92 of the hereditary peers
- House of Lords Reform Act 2014; ability to resign from the House of Lords, you
sued to never be able to leave (unless you died of course)
- House of Lords Reform Draft Bill 2011; proposed that the House of Lords be cut
down to 450 (less than the house of commons), with either 100% or 80% of the
house being elected for a single nonrenewable (can’t get elected again) term of 15
years, elected under STV. Was rejected

Lecture 6: UK Parliament Part Two

What is Parliament for? - legally, it’s all about supply (why we have an annual budget). Supply
means two things, first that parliament supplies the government it is them who decide who the
government of the day is, not anyone else (king courts etc. all have no say). They also must
supply the government with the resources of everything they need, to supply the government
with money. They tax his majesties subjects to gain money, and they have legal authority to tax.
The government itself is supplied BY parliament, and the parliament supplies the government
with resources to fulfil its obligations.

Two constitutional principles at play here

1) Parliament is the vehicle through which the crown and its minsters must govern.
- Power in the UK didn’t originally start with parliament. It’s at the apex of power
now but power used to come mainly from the crown, and the courts (not the
courts of law, the royal courts). Over the past centuries, power was seized from
the monarch by parliament. Legal Authority: Bill of Rights 1688; Act of
Settlement 1701, because there can be no taxation of the people by parliament
without strict legislative authority. The government (the treasury) runs out of legal
authority to tax us every year, so every year parliament must approve the
government to tax citizens via the budget vote. If the government ever loses the
budget vote, that is akin to a vote of no confidence and would have to resign
because a government that cannot get its budget through is a government that
cannot govern
2) The crown’s government must carry-on:
- From within parliament, a government must be formed- albeit one which is
accountable to parliament for its actions, policies, and decisions. Constitutionally
the important thing here is that we have a government because parliament puts up
with it, the government is only in power (pm and their cabinet) because
parliament identifies those people as the people who should be holding power for
the time being. They are accountable to parliament for their actions and decisions

Three core functions of a parliament: a) to make law b) to hold the government to account and
c) to debate public issues of the day. The house of commons and lords can both do all three of
these functions but the balance of these three functions between the different houses of
parliament are different. Commons mainly debates and holds government to account- it is very
hard for the house of commons to make or enact law. The house of lords does not do much in
terms of holding government account, instead they are the effective legislature group when it
comes to direct influence on law making. They spend much longer and more thoroughly
debating legislation, than the house of commons does.

A. Making Law
- Parliament makes law by passing (after debating) a bill (a legislative proposal) if
the bill is passed then it becomes an act of parliament, which is a statute, a piece
of legislation
- The majority of bills that are passed are done by parliament, rarely done by
private members
 - Bills are introduced into the parliament by ministers; expectation that the
government in power (party) will get their bills through parliament. Introduced by
ministers and then read many times. First reading is purely technical- just an
announcement
- Second reading; a general debate on the bill which ends with a vote. Cannot be
amended at second reading, voting is done only for the entire general bill. Nearly
always proceeds because the govt has a majority in parliament
- Committee stage; first amending stage. Either conducted by a public bill
committee or committee of the whole house. Most done by committees, unless it a
bill that is a constitutional amending bill, those are done on the mainstage so all
MPS can vote
- Report stage: the second amending stage where the whole floor can vote on
amendments to the bill after the committee has finished their first round of
amendments
- Third reading; the final vote from everyone on the bill
Bills must be passed by both houses; but peers in the hose of lords have much more input into
the legislative stage than the house of commons does. If the house of lords doesn’t agree with a
bill passed by the house of commons, they can broadly do two things, one convention and one
statute.

Salisbury Convention: House of Lords will not resist a bill that implements a commitment
made by the governing party in its election manifesto. House of commons passes whatever the
majority party wants since the house of commons is made up by the majority party, however
sometimes what they pass is not popular within the House of Lords since there is no majority in
the house of lords. Most of what the House of Commons passes are commitments that are made
by the governing party in their election manifestos. House of Lords usually yields to the House
of Commons because they are unelected and so less democratically legitimate

What can the LAW do- Parliament Act 1911 (amended 1949): in 1906 there was a general
election won by liberals, back when the majority of house of lords were hereditary peers.
Chancellor of the exchequer proposed radical measures to completely change methods of
taxation, and all the liberals pass this in the house of commons. House of lords is appalled at
these changes to the British exchequer and British fiscal policy. PM goes to see the king; says we
can’t have a democratically elected people’s government being stopped by the Lords. Asks for
400 new liberal peers in the house of lords, king obviously says no, but I will instead dissolve
parliament, create a new general election, if you win again and can put you budget through the
house of commons and thwarted in the house of lords again, then I will fulfil your request. House
of lords passed the crazy finance bill since they were worried that the other option was getting
400 new liberal members. RESULTING LAW: House of Lords may not reject the financial bills
of the House of Commons.
- Now the House of Lords can only delay money bills from the House of Commons
and can only delay them by one month. Can delay other non-money bills for up to
one year
B. Holding Government to Account

The core idea of parliamentary government; ministers are responsible to parliament for their
actions, policies, and decisions as well as the same for their departments
- Debates
- Parliamentary questions (written and oral)
- Select committees
How do we evaluate how well Parliament performs its functions
- Making law; compare Commons with Lords
- Holding the government to account; compare PQ’s with select committees
WEEK FOUR

Lecture 7: the sovereignty of parliament

Constitutional orthodoxy, and the doctrine of the sovereignty of parliament in legal codes.

The diceyan orthodoxy: Parliament may make or unmake any law whatever - which means that
no law is entrenched, and no court can challenge what Westminster enacts into law is law
(cannot be overridden by courts) which courts the Uk constitution into marked contrast it’s most
other constitutions within the rest of the word. and 2. No person pro body may override or set
aside parliaments legislation (AV Dicey The law of the constitution) these are laws not
conventions, they are justifiable, and the courts will enforce them

The legal supremacy of statute: the sovereignty of parliament is not about sovereignty; it’s about
legal supremacy, and the sovereignty of parliament is not about parliament; it's about statute 

The legal authority for Dicey’s propositions

 the sovereignty of parliament is not a political doctrine of sovereignty but as a legal
doctrine of supremacy: who has ultimate legal authority 
 at first parliament rules without the crown (1640’s), then brown as restored, terms
definitively set by bills of rights, then parliament and crown now rule together
 An act of parliament (a statute) means an act of the crown-in-parliament, it is the foreign
legal binding agreement both “sovereign” powers
 Not distinctly considered English but considered British in the past, but these days
Scottish parliament works in a popular sovereignty way, so they claim parliamentary
sovereignty doesn’t work in Scotland
Diceyan orthodoxy in the courts
Cheney v Conn: statute prevails over treaties binding on the UK in international law 
British Railways Board v Pickens: Lord Reid says that the idea that the court is entitled to
disregard a provision in an act of parliament on any ground must seem strange and startling to
anyone with any knowledge of the shot or and law of our constitution; authority that there is no
difference between law of supremacy in Scotland or rest of Britain
Manuel v Attorney General: Robert McGarry says a contention that an act of parliament in
ultra vires is bold in the extreme. It is contrary to one of the fundamentals of the British
constitution

Can parliament bind its successors?

 if an enactment said this act may not be released or amended unless by two thirds vote in
House of Commons or this enactment may not be repealed or amended unless the repeal
or amended the I supported d by popular vote in a referendum; can parliament bind its
successors as to the “manner and form” of subsequent legislations, just can’t bind them to
specific decisions of acts
The NEW VIEW and the manner and form argument; is there’s a later act of parliament
inconsistent with the earlier act, then the later one will be implied to have repealed the earlier act 
In terms of referendum and parliamentary sovereignty: the Scotland act 1998 s 63A says that the
Scottish parliament and the Scottish government are a permanent part of the United Kingdom’s
constitutional arrangements, they are not to be abolished except on the basis of a decision of the
people of Scotland voting in a referendum 
Contrast on Westminster: the statute of Westminster terminated parliament’s ability to legislate
for a dominion of the British empire (such as Canada) without a request and consent of the
dominion
Could parliament just repeal (unmake) that statute and legislate for Canada?
 Lord Sankey; as a matter of abstract law yes, but that is theory and has no relations to
realities
 What brings us back to the real foundation of all of this is not legal theory but political
fact

Overall takeaways
1. parliament may make or unmake any laws 
 true as a matter of legal theory, certainly in England, probably also in Scotland
 Fake as a matter of political fact
2. No one may override or set aside parliaments legislation
 still just a bout true but a principle under challenge as will be covered in the next lecture
Lecture 8: The Sovereignty of Parliament pt. 2

Can the courts review an act of parliament? Three modern challenges

- EU Law and the Principle of Supremacy: principle of Eu law called supremacy,
two cases decided by the court of justice that make this clear, if there’s conflict
between law of a member state of EU and EU law itself then as a matter of EU
law the latter prevails over former. EU law trumps national law that conflicts,
including any part of national constitutional law-
 European communities act: passed for the UK to join the EU in 1972, this act gave the
UK courts the power to enforce EU law in the UK including power to include the
principal EU legal supremacy (but now repealed use to Brexit) 
 Issue is that the UK parliament also has supremacy. EU law says that between UK
parliament and EU law, EU prevails, but UK parliament says that parliament can male or
unmake any law and no one can override this, so that’s the contention between
sovereignty of parliament in UK and EU law
This question was posed in the Factortame sage case:
- a case about fishing where parliament passed legislation called the merchant
shipping act which said if you want to fish in British waters then you have to be
domiciled here in Britain. Gave rise to massive conflict especially in Scotland.
The Thatcher government sought to protect British fishing waters. Factortame
was a group of Spanish fishing companies who were previously allowed to fish in
British waters but lost their licenses due to this act. They went to court to argue
that the relevant provision of the act was unlawful as being contrary to the EU law
(which states free movement of workers and services) they sought a mandatory
interim injunction against the crown which petitioned the Secretary of State to
remedy the act (house of lords said no) even though they were asked to act as UK
parliament within their delegated powers of enacting the EU law
QUESTION: In EU law can domestic courts (Uk parliament) have the jurisdiction to grant a
remedy in legal proceedings that had the effect of suspending an act of parliament. Answer: yes.
RESULT: House of Lords granting the Factortame remedy does not override Dicey rule 1 since
the House of Lords were not acting in their capacity as a domestic court, they acted in their
capacity as a court required to enforce European law
Aftermath of Factortame: in Thorburn v Sunderland said that the ECA can’t be impliedly
repealed, a partial form of entrenchment recognizing it as some sort of constitutional statute.
 the EUA 2011: reasserting the principle that EU law takes effect in the UK only bc
parliament has so decreed
 European Union withdrawal agreement 2020: taking back control? Incorrect idea because
we had never ceased our sovereignty to the Brussels EU court in the first place. “It is
recognized that the parliament of the UK is sovereign”

2. The ECHR and the Human Rights Act: EU human rights law comes from the ECHR not
from EU law (UK still a member and still bound by this law). We are still in the council
of Europe, just not the EU. 
Section 3: primary legislation (statutes and acts) must be read and given effect in way which is
compatible with the convention rights 
Section 4: if a provision of legislation is incomparable with convention rights, then a court may
make a declaration of that incompatibility. But the declaration doesn’t affect the validity
continuing operation or enforcement of the provision in question
E.g.: DPP v Ziegler (right to protest) section 137 of highways act says that it’s an offence if a
person without excuse willfully obstructs a free passage along the highway. Ziegler challenged
this saying that this obstruction (protesting via blocking highway) should still be legal since the
ECHR gives everyone the right to freedom of protest (peacefully) and the UKSC agreed and
rewrote this law to say that a person's right to protest is outweighed by the public interest in sing
the highway for free passage

3. Common law radicalism: cases that don’t raise any questions of EU law of human rights
law which nonetheless reveal the courts to be at least changing or setting aside what
parliament had enacted.
 Evans v Attorney General: who is the guardian of the public interest. Supreme Court
gave affect not to what to the freedom of information act SAID but what they wish it had
said instead
 R (UNISON) v Lord Chancellor: statute read down to limit ministerial powers affecting
access to justice 

All of the controversy of what parliament can and can’t do came down in Jackson v Attorney
General: where Lord Steyn said we do not have an uncontrolled constitution (Factortame makes
that clear) and says that the Dicey rules are now out of place. Supremacy parliament is till the
vernal principle but it's not unthinkable for a circumstance where we go against it. Lord Hope
says step by step the English principle of absolute sovereignty is being qualified and the rule of
law enforced by the courts is the ultimate controlling factor on which our constitution is based. 

There are senior court judges which say that parliament sovereignty should be qualified not
absolute. 
WEEK FIVE

Lecture 9: The UK Government: composition and powers

The PM: appointed to office by being invited to serve by the King e.g., last official act by the
Queen was accepting Johnson’s resignation and inviting Liz Truss to take his place
 There is no law requiring there to be a prime minister but there has been one since the
beginning of the 19th century. The monarch's legal over is to decide whether the monarch
wants a prime minister and whom to invite and form an administration (in reality very
heavily restrained).
  Convention does require there to be a PM, but we have a PM bc of constitutional
convention not constitutional law.
 The PM will be whomever is the leader of the majority power and can command the
confidence of the House of Commons, i.e., whomever can SUPPLY the UK (budget
being passed) the rules of all of these constitutional convention rules regarding the PM
are included in the Cabinet Manual
 E.g., Boris Johnson was forced to resign via convention since he no longer had the
confidence of the House of Commons which meant he no longer had legal constitutional
authority 

The Cabinet: composed of about 25 senior ministers almost all MP’s but a few may be Peers in
the House of Lords. These are all political heads of government departments (secretaries of state)
who meet weekly and are supported by the cabinet secretary (head of civil service) and they are
all split up into separate committees 

Junior Ministers: ministers of state in government but not in cabinet and about 100 total who
will be mainly MP’s but some in the Lords. Organized into departments.

The civil service: permanent, independent, political neutral, professional service. These people
don’t differ between whoever the PM is, they are politically neutral. They serve whoever the
government is. 
 Constitutional reform and governance act 2010: puts the civil service on a statutory
footing and say they must follow the civil service code
Special Advisers: political aids to ministers. The political eyes and ears of the Secretary of State
and they help develop policy.  Generally anonymous but sometimes very notorious (Alastair
Campbell, Dominic Cummings) 

Agencies: do much of the day to work of governing.

  Non departmental public bodies and executive agencies (e.g., Driver and vehicle
listening agency or the prison service)
 HMRC (non-ministerial department of state) which is where we pay our taxes to and who
sends you your tax returns 
Local Government: devolved governments in Scotland and Wales. They also include combined
authorities and metro mayors. There has been an attempt to decentralize some central power into
combined authorities and metro mayors 

The Monarchy: what are the constitutional powers of the monarchy- the power to appoint the
PM (cabinet manual), the power to dismiss the government (William IV 1834 and Australia
1975)  the power to dissolve parliament (the budget and the House of Lords), the power of royal
assent (Queen Anne, militia bill  1708) Bagehot says in his book that the monarchy has three
constitutional rights, the right to be consulted, to encourage, and to warn. But none of these
powers may be exercised if they are not politically supported by the public.
Lecture 10: UK Government- prerogative and powers

Statutory powers: most government powers are statutory. An act of parliament confers powers on
executive ministers. Most acts of parliament are enactments of government bills and parliament
is the institution through which the government legislates. 
 government comes up with legislation, parliament passes it, and then it is imposed back
on government
Parliament makes law, law confers powers on ministers, ministers exercise their powers subject
to judicial review and are accountable to parliament for their actions and decisions. That’s the
whole constitutional scheme

Prerogative powers: legal powers which the common law recognizes as vesting in the crown.
Some still exercised by the monarchy itself (reserved powers for only the crown but restrained
by constitutional conventions) but most are now exercised by ministers (power to make treaties,
power to declare war or to commit HM armed forces in combat, employ civil servants, and to
advise that parliament be prorogued) 

Three problems with prerogative power: definition, accountability, and legal review (how do you
know or where do you go to see what the actual prerogative powers are) 

Defining prerogative power: Blackstone defines it as the legal powers which are unique to the
crown. Dicey says it's the residue of discretionary authority that is legally left in the hands of the
crown. He doesn’t think prerogative powers have to be unique to the crown, any legal power
legally left in the hands of the crown is a prerogative power in his definition
 BBC v Johns: “it’s 350 years and a civil war too late for the queen's prerogative” the
prerogative can be shrunk but it cannot be grown
 When there is a conflict between a statutory power and a prerogative power it must be
resolved in favor of the prerogative power
Third-source powers?
R v Somerset CC ex parte Fewings: Laws J: individuals can do anything that the law does not
prohibit. Anything govt does must be authorized by the positive law. Individuals are free,
government is not. 
R (Shrewsbury and Atcham): the powers of public bodies extend, subject to the rights of
others, to anything which could be done by a natural person
R (New London College): its open to question whether the analogy with a natural person is
really apt in the case of public or governmental action as opposed to purely managerial acts of a
kind that a natural person could do such as making contracts acquiring or disposing of property,
hiring, and firing staff and the like. 

Judicial review of prerogative: there’s been a long attempt to bring the prerogative within the
scope of the rule of law (e.g., chandler v DPP)
 the GCHQ case: employment of civil service is a prerogative power. In this case, staff
were informed by thatcher that they could not join trade unions bc didn’t want to run the
risk of them going on strike. This was not her exercising a conferred statutory power, she
 was exercising a prerogative power. - it is not the source of the authority that may render
a matter non justiciable, but the subject matter of the decision

Miller I and the treaty making power

Post Brexit. New PM Theresa May who pledges her government to deliver the results of the
Brexit referendum. Question: can ministers rely on the prerogative power of treaty making to
give formal notice under Article 50 TEU of the UK’s intention to withdraw from the EU.
 UKSC said no, ministers needed bespoke statutory authority to do this (later provided by
Act of Parliament)
 Why? Bc EU law took effect in the UK by virtue on an act of parliament. To cease EU, it
requires primarily legislation, minsters cannot achieve this result by relying on the
prerogative alone
 This case: increase in the extent of exercise of prerogative powers being subject to
judicial review and a judicial re-enforcement of the sovereignty of parliament

Miller II and the power of prorogation

Question: did ministers have the prerogative power to advise the Queen to prorogue parliament
for five weeks?
 high court of England ruled the matter non-justiciable (it was a political question)
 Court of session in Scotland ruled the minsters acted unlawfully bc their motive had been
to stymie Parliament
 UKSC agreed with court of session saying that it’s not about motive but about effect: the
effect of five-week prorogation was to prevent parliament from doing its job of holding
the govt to account in regard to its policy as to when and how the UK should leave the
EU
 This case: reverberates the separation of powers and the sovereignty of parliament
WEEK SIX

Lecture 11: ministerial responsibility to Parliament

Constitutional rules pertaining to the govt are very different to the rules pertaining to parliament.
Principal rule concerning parliament is the sovereignty of parliament- they may make or unmake
any rule, and no one may override that. Government however is always subject to higher
authority of either the courts or the parliament

 The rule of law is that the government is constrained by the law and ministerial
responsibility is that the government is constrained by parliament.

Core constitutional conventions (binding but non justiciable rules of constitutional behaviour):
collective ministerial responsibility and individual ministerial responsibility              
collective ministerial responsibility: the ministerial code- a document that the prime minister
details and sends out to all their cabinet ministers. The code says that ministers should be able to
express their views, frankly, argue freely in private and remain a united front in public, knowing
that the privacy of opinions expressed in cabinet and ministerial committee, should be
maintained 
 Two consequences to this:
A. there is a single govt position on any agreed issue: every minister must be able to defend
every part of public policy in public
B. Internal deliberations as to how that position was arrived at, is to remain confidential 
Individual ministerial responsibility: minister have duty to parliament to a count and be held to
account for the policies decision and actions OF their departments and agencies (like how they
have to defend stuff during PMQ’s
Things to consider
 Policed how and by whom: in parliament through the process of politics and rests on
political judgement
 Responsibility for policy and operation? Everything that happens in the department? if
ministers aren’t accountable to Parliament for all these individual decisions and
occurrences and mistakes, who is?
 Responsibility for personal behaviour as well as political actions? yes accountable for
personal behaviour especially when pertaining to their individual integrity and honesty
 When will a minister be expected to resign when they breach the rules of duty to
parliament (i.e., failing to account to Parliament for their actions) and of course also falls
to the judgement of the PM, party, and political press

Ex Partes Fire Brigades Union: this case shows that the lines between the justiciable and the non-
justiciable pertaining to constitutional conventions, are blurred. There are instances where the
courts WILL act even when it might seem like a matter for only parliament 

Facts: parliament passed CJA 1988 which put the criminal injuries compensation scheme in
statutory force. But the legislation said that the provisions shall be put into force on such a day
when the Home Secretary shall decide. The Home Secretary decided to repeal this, and the fire
brigade union wanted the court to juridically review this decision to appeal this.

Did the home secretary act lawfully in doing this? 3 judges on the panel said the HS acted
unlawfully but the dissenting judges said parliament should hold him to account not the
judiciary. The majority said that it was the duty, not discretion of the HS to bring the provisions
of the CJA into force

Lecture 12: The Rule of Law

Rule of law- Requires the government to be subject to the law. The British constitution imagines
that there are two ways the UK government are held to account- politically (through parliament
and by collective/individual ministerial responsibility) AND judicially (by the courts since the
government needs legal authority for all of its actions)

Authority for the rule of law: the ‘great case’ of Entick v Carrington.
Facts: Entick was a journalist and a pain in the governments ass, he was persistently critical of
govt policy. The government didn’t want him to put into print what he was writing, and they
wanted to get in the way. The king's principal sec of state (earl of Halifax) dispatched Carrington
and other king’s messengers to Entick’s house to search and seize his papers and arrested Entick
and detained him in the Tower of London for 12 days. On his release Entick sued Carrington for
trespass (a common law offence) because the govt had no lawful authority for this arrest.
Carrington said they did have authority because the king said to do so. 
 Lord Camden CJ said the warrant from the sec of state to do this act had no authority in
law. “If it is law, it will be found in our books. If it is not to be found there, it is not law” 
There was no lawful statute or common law principle that gave the earl of Halifax to order these
messengers to act on his order

Malone v MPC
Sought apply the principle from Entick and Carrington to his case
Facts: Malone realized that the only reason the police or authorities had him as suspect of stolen
goods was because of evidence that the police had obtained by tapping his phone (which they did
not have legal authority to do) 
 McGary LJ didn’t apply the rule of the great case to this case he turned the principle of
Entick on its head, he said there's no law that says what the police have done is Unlawful,
so therefore they haven’t acted unlawfully. No law that prohibited their actions. But
Entick’s principle says that before the government may lawfully act, they require positive
legal authority. Malone switched it, said they didn't need clear authority because there
wasn’t a law that prevented it. 
A. Could read this case as a direct contradiction to Entick v Carrington, you cannot have
both of these rules at once. 
B. Or could read it as the rule in Entick applies only when the government is trying to do
something coercive, and it needs authority before doing that. But in Malone there was no
coercive act to his property or personal autonomy (as there was in Entick)

Equality and the Rule of Law: there should be the same law for the governed and the government
alike. The government has no immunity to the laws that govern its citizens. Dicey considered
this to be a central feature of the rules of the law.
 M v Home Office: sought judicial review of the home secretary’s decision to deport him.
Judge said until the application has been resolved by the courts, M is not to be removed
by the courts (until they make their decision). Sec of state was advised by his legal team
that he didn't have to abide by this requirement from the courts. So, he ignored it, and M
got put on a plane and was deported. M’s lawyers went to court and argued that the sec of
state had argued in contempt of court. 
Question: Can the courts find that sec of state had acted in contempt of the court? Does the court
itself have the jurisdiction to find that they themselves have been disobeyed. Yes, can be found
to be in contempt of court but not punished for it. Courts also don’t have the jurisdiction to find
the crown itself (whatever that means) in contempt of the court

R (Corner House Research): Fraud office was evaluating arms deal with Saudi Arabia. Looked
like criminal proceedings were about to be brought forward, until the director of the fraud office
pulled it and said no, we aren’t going to prosecute. CHR is a small campaign group and they
sought judicial review for the director’s decision to pull this prosecution and said that he’s only
doing this because he’s come under political pressure (from the UK govt because Saudi Arabia
put diplomatic pressure on the UK govt) to abandon the prosecution. 
 The high court condemned what the director had done and said it was contrary to the rule
of law for independent prosecutors to come under political pressure and abandon what
needs to be prosecuted.
 Overturned by the House of Lords they said it was fine? Example of where it's arguable
that the courts have been too weak at upholding the rule of law in the face of powerful
government institutions that seek to undermine it

Showing the rule of law to be TOO strong

R(Evan’s) v Attorney General
 The ultimate controlling actor with regards to freedom of controlling factors is the public
interest. Who is the guardian of the public interests? The courts? Or a responsible
minister? 
 The Supreme Court interpreted this case to mean that the guardian of the public interest is
the court but that’s not what the freedom of interest act says. The court protected the rule
of law too robustly  

WEEK SEVEN
Lecture 13: the UK Judiciary- composition and functions

Structure
 The UKSC: president, deputy president, and justices of the Supreme Court. Created by
the constitutional reform act of 2005, transferring the jurisdiction of the appellate
committee of the HoL to the UKSC. Spans all three sections of the UK, England &
Wales, Scotland, and N. Ireland. Two purposes:
1. Ultimate court of appeal
2. Constitutional court because it hears cases both on appeal and on first instance with
original jurisdiction
 Scotland: Court of session (outer house; inner house) made up of lord president, senators
of the college of justice
 England and Wales: Court of Appeal (Lord Chief Justice; Master of the rolls, and lord
justices of appeal) also a High Court (president of the QBD, heads of divisions and high
court judges)

Functions of the judiciary: the adjudication of disputes

 Legal process is inaccessible to most 
 Adjudication of disputes is between two parties (political disputes can be more complex
than that, more than two views) 
 Its backward looking, we look at past precedent and the past facts in the judiciary
whereas political limbs are more future looking in comparison to the courts 

Law making? (Miller/Cherry), Statutory interpretation? (R (Evan’s) v AG)

Problems? - What is the democratic legitimacy of judges making political decisions? If judges
are increasingly making political decisions, how do we square that with democratic legitimacy 

Lecture 14: Powers of the UK Judiciary

Unwritten/written powers and political/legal powers
The traditional Westminster model: includes strong ministerial accountability to parliament and a
weak rule of law (mentioned in the previous lecture)

The rule of law is now getting stronger and the courts getting more robust in their checks on
executive authority since ministerial accountability parliament is weakening since Brexit.
There’s been a very strong parliament holding govt to account to the point where parliament gets
rid of PM’s it doesn’t want (past 3 prime ministers, neither of them lost prior from losing general
election but rather because parliament withdrew confidence in their administration). They all fell
due to the traditional Westminster model and the government's accountability to the House of
Commons 

Westminster legislation has changed the Westminster model

 Devolution statutes (1998): require courts to adjudication boundary disputes between
different layers of the government and between legislatures
 Human rights act: requires courts when they can to interpret legislation compatible with
Convention rights

Courts have also changed the balance of power between themselves and parliament government
 Pierson, Simms, and Unison: These three cases should all be seen in the light of Jackson
Evan’s and miller V cherry 
 All these cases show in different contexts how the court in the UK have changed, or
sought to change the balance of power between them and parliament government, and
increased their own power
Pierson: parliament conferred on the Home Secretary a discretionary power to decide when a
prisoner serving a life sentence may be released. (Now in hands of courts but used to be decided
by the house secretary)
Question: whether the HS power to decide what ‘life’ means, could that power be used to keep
that prisoner in jail for longer than what the prisoner expected to be in jail for

 lord Stein says that parliament must legislate compatibility with what the law and with
what judges agree with in terms of the rule of law. Everything parliament enacts must be
compatible with the rule of law
Simms: Lord Hoffmann says parliamentary sovereignty means that parliament can if it chooses
to legislate contrary to fundamental principles of human rights BUT the principle of legality
means that Parliament must squarely confront what it's doing and accept the political costs. Two
things he does through this judgement
1. Defines the rule of law 
2. Defined the principle of legality
Unisons: challenged the way the lord chancellor exercises his fee making power in the courts 

All three of these cases gives the impression that over the course of the last 25 years, parliament
has legislated to increase the power of the courts but the courts themselves have also given a
string of judgements in which their power and the constitutional power of the judiciary has
broadened 

HOWEVER: this question of judicial power ebbs and flows like a tide. Consider is the UKSC
now starting to row back?
 a more conservative turn in the courts case law since 2021? Three examples
1. Begum: home sec did not act unlawfully in depriving Shamima begum of her British
nationality 
2. SC, CB, at al: sec of state did not unlawfully in imposing a two-child limit on certain
welfare payments
3. UNCRC Bill: several provisions of a bill passed by Scottish parliament were unlawful
because they impermissibly restricted the sovereign ability of the UK parliament to
continue to make law for Scotland

WEEK EIGHT
Lecture 15: Introduction to Devolution

Devolution campaign lead by Scotland. Scotland Act 1978, when the legislation as passed it
wasn’t able to come into power until it was passed by popular referendums. On March 1, 1979, a
referendum voted for the 1978 Scotland act to come onto power.

- In Scotland 52% vote yes but even though that was the majority it was only 33%
of the electorate which didn’t meet the 40% threshold of the Cunningham
amendment. Scottish act never came into force and the Scottish assembly never
got created
- In Wales 80% voted no

the campaign for home rule: in the run up to Blair’s election victory, a lot was one to prepare for
home rule and Scottish devolution. Conservatives in the 1990’s opposed not only to
independence but also to devolution. Devolution in the union is popular in comparison to how it
used to be ruled (no devolution)

The scheme of the Scotland Act

- Creates a unicameral legislature comprised of 129 MSPs elected on the mixed

member system
- Holyrood doesn’t have parliamentary sovereignty, parliament can’t make and
enact any law, and they can be overridden. They only have law making authority
within the limits of the competence of the Scottish parliament to rule. The limits
to what they can do are set up by Westminster
- They use the reserved powers model, everything is devolved to Holyrood, except
for which is reserved to Westminster. This creates a fairly powerful devolved
legislature

Differences between Scotland and Wales: government of Wales act 1998 created an assembly
of 60 members with powers to make statutory instrument and to spend public money but no
primary law-making powers. Based on the conferred powers model i.e., the assembly only had
those powers conferred on it by the Westminster govt, everything else is reserved to
Westminster. Now after 2020 the Welsh Parliament moved to the reserved powers model and
confers limited tax powers on the Welsh Parliament as well

Differences between Scotland and Northern Ireland

- devolution in NI is part of the peace process

- devolution in NI is by design consociationalism democracy, underpinned by a
requirement that the unionist and nationalist communities (and parties) share
power
- devolution in NI has been suspended several times since 1998 and direct rule re-imposed
(whereas it’s never been suspended in Scotland or Wales

What about England? Only nation in the UK that has no devolution, because there has been no demand
and devolution is a demand led process
Lecture 16: Devolved Government in Scotland

Scottish parliament composition: unicameral chamber, 129 MSPS, no house of lords equivalent.
MMP electorate system. Uses d’Hondt formula to allocate seats via party lists. Aspiration for this
design choice was to ensure that no one party ever won an overall majority, supposed to require a
coalition between parties. Yet the SNP has broken the system and won the majority

Functions
- supply the government (just like in Westminster) parliamentary government, we
don’t elect the government we elect the parliament, and they select the
government
- to make laws (within legislative competence) for the people of Scotland, called
acts of the Scottish parliament (primary legislation)
- can hold Scottish government ministers to account
Law Making:
Stage 1: lead committee inquiry into the general principles of the Bill, evidence taking, report,
chamber debate and vote.
Stage 2: first amending stage, committee debates and votes on all competent amendments. Only
members of the committee may vote on amendments at stage 2
Stage 3: where everyone in the chamber not just committee can vote on competent amendments,
then overall vote on the bill.

ASPs- the limits on competence

The rules on competence: SA98 ss28-29 and schedules 4-5

Section 28(7)- this section doesn’t affect the power of the UK parliament to make laws for
Scotland
Section 29(2) a provision of an ASP is outside competence and is “not law” if
1. It would form part of the law of a country or territory other than Scotland
2. It relates to reserved matters (schedule 5) reserved matters are what Westminster are only
allowed to legislate on, as in, not devolved powers
3. It’s in breach of the restrictions in schedule 4, and
4. It is incompatible with any of the convention rights (or, formerly, with EU law)

Schedule 5: reserved powers

- aspects of the constitution
- foreign affairs
- defence
- monetary policy, currently, and financial services
- aspects of fiscal policy
- immigration and nationality, national security, official secrets, misuses of drugs,
emergency powers
- company law, insolvency, competition law, intellectual property
- consumer protection, product standards, wights and measures,
telecommunication, postal services
- electrical generation, oil and gas, nuclear energy
- aspects of transport
 - aspects of social security
- employment law, health, and safety at work

Schedule 4: protected measures. An ASP may not modify certain aspects of

- acts of union
- the UK’s Brexit legislation including the EU withdrawal act 2018 and UK internal
market act 2020
- the human rights act 1998
- the law on reserved matters

Everything that’s not on schedule 4 or 5, is devolved: health education civil and criminal justice
prisons transport local govt environment protection social care etc.

The Scotland Acts of 2012 and 2016 (amended). Both amendments were deigned to increase
Scottish independence and power. 2016 amendments were substantial and significant.

- Calman commission (lab, lib dem, cons)

- 2016; declared the Scottish parliament to be permanent, made fiscal changes to
the Scottish parliament’s fiscal powers as regards to income tax, transferred one
third of working age welfare benefits to the Scottish parliament

The most powerful devolved parliament in the world? Almost. The Canadian provinces have
more tax powers than the Scottish parliaments. But Scottish parliament is stronger than
individual US states and Australian states.

Two measures from the OECD. What percentage of its budget is the Scottish parliament
responsible for raising (almost half) what percentage of identifiable public spend in Scotland is
the Scottish parliament responsible for (two thirds)

Checking for COMPETENCE: minister or other ember in charge of a bill must certify that the
bill is competent under the SA98 s.31 (1), so the first check comes from the government itself.
Law officers nay refer proposed bills to UKSC before it’s been passed by parliament to check
the competences of the bill under devolved rule

- Third parties can challenge the lawfulness of ASPs after enactment

a) AXA General Insurance
b) Imperial tobacco
c) Christian institute
d) Scotch whisky association

Composition: parliament nominates one of its members to be first minster, this must happen within 28
days of an election or within 28 days of the FM resigning from office. If this fails to happen, then there
will be an ‘extraordinary general election’.

IGR (intergovernmental relations)- tend to be informal, joint ministerial committee, structure is under the
ownership of the UK government and is (or was) under review
WEEK 9

Lecture 17: Law of Devolution

Understanding the constitutional basis of devolution and how it makes sense of devolution.

Divides law making power and executive power between two different levels: Reserved
(Westminster power), devolved (transferred to Holyrood or Scottish parliament) but also a
middle category exists called shared power (taxation is an example of this) taxation of income
shared, but national tax is reserved to Westminster.

All powers don’t fit neatly into these two compartments, however. Flexible powers (section 30
orders in SA1998 s 30) most famous use was to enable the independence referendum in 2013 to
be held even though Westminster insisted they couldn’t hold that referendum under the current
SA act so then voted on it and decided to transfer that legislative power from Westminster to
Holyrood and then the referendum was allowed.

Legislative consent and the Sewel Convention (recognized in statute but still not a statutory rule
because that would make it a legal rule) recognized in s. 28(8) of SA98
- “it’s recognized that the parliament of the UK will not normally legislate with
regard to devolved matters without the consent of the Scottish Parliament”
(basically, even though Westminster can, legally, make laws that breach the SA,
they will not normally do so constitutionally without the Scottish parliaments
consent)
- Usually when consent is sought by Holyrood and denied, Westminster will alter
their legislation to fit with Holyrood. Only times they went against Scottish
parliament was 3 times due to Brexit (e.g., Miller v Secretary of State)

The law of devolution- Early Case Law

Two mis-steps

- Whaley v Watson: Lord president rogers: Scottish parliament was created by

statute, and as such it is a body which must act on the powers conferred upon it by
statute. Th court has the same powers over it that it would have over any other
statutory body: ISSUE- this isn’t just a statutory body, they have the power to
enact law. Underclaimed the power of the Scottish Parliament
- Robinson v SSNI: Bingham and Hofmann: The Northern Ireland act 98 is in
effect a constitution which should be interpreted generously and purposively:
ISSUE- legislation is usually interpreted by the courts in the UK generously or
purposively, they are just supposed to give effect to what parliament intended by
the words of legislation and give legal effect to that intent. Overclaimed the power
of the Scottish Parliament
Missteps corrected in two key cases: two key devolution judgements

1. Axa: SA98 s29 lists the ground in which an ASP may be challenged (that it extends beyond
Scotland, that it related to reserved matters, and that it is incompatible with Convention rights)

Could an ASP additionally be challenged on common law ground of judicial review i.e., that it is
irrational or unreasonable (well established ground for seeking judicial review)

Lord Hope: in general terms, no, an ASP could be challenged under the common law only if it
was violative of the rule of law.

Para 46: Scottish parliament is ‘self-standing’ its enactments enjoy the highest legal authority

Para 49: the dominant characteristic of the Scottish Parliament is its firm rooting in the traditions
of a universal democracy, while the judges who are not elected are best places to protect the
rights of individuals, elected members of a legislature are best places to judge what it’s in the
country’s best interests as a whole as they have the advantages that flow from the depth and
width of experience of elected members and the mandate that has been given to them by the
electorate.

Lord Reed: same conclusion but via different reasoning: Scottish parliament powers don’t need
to be exercised for ant specific purpose, in that sense, its law-making powers are plenary (para
147, meaning it doesn’t have to exercise its competences for any specific reason

- As long as its powers are exercised within the limits set by SA98 s 29 how it
exercises its law-making powers is a political question in respect of which the
parliament is accountable to the electorate, not a legal one in respect of which the
parliament is accountable to the court (para 1480
- But under lord Hoffmans’ principle of legality is Simms parliament cannot be
taken to have intended to create a body (the Scottish parliament) able to legislate
contrary to the fundamental rights of the individual or contrary to the rule of law

2. Imperial Tobacco: how to interpret SA98 in terms of how broad (or generous) its grant of
legislative authority to the Scottish parliament is?

Three principles (by Lord Hope)

- Section 29 and schedules 4 and 5 govern the matter (para 130)

- These provisions must be interpreted in the same way as any other rules found in
a UK statute: SA98 is deigned to create a system that is coherent stable and
workable, thus, interpretation should be constant and predictable (para 14)
- No special status can be attached to describing SA98 as a ‘constitutional statute’:
there is no presumption in favor of competence but SA98 was intended within
carefully defined limits, to be a generous settlement of legislative authority (para
15)

The way that Scotland makes it transferable powers is about an out with the competences of the
UK parliament- they can make or unmake any law whatever- Dicey
Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland)

Lecture 18: Legal Challenges to Devolution (Part 1)

Legal challenged to acts of the SP on human rights grounds and EU law

4 Cases to Consider

1. AXA General Insurance v Lord Advocate

Damages (asbestos related conditions) Scotland Act 2009. Short act, which provided that
asymptomatic pleural plaques (lesions on the lung, when exposed to asbestos) should be treated
as actionable for purposes of personal injury so you can sue for compensation. Had retrospective
effect as regards life insurance policies

- Was this an interference with AXA’s right to enjoyment of possessions (right to

property) under A1P1 ECHR.
- They said they’ll have to give up money because of this, because its retrospective
so we will have to give up money that we didn’t need to give up before, and this
interferes with our right to property.
- UKSC threw this argument out for two reasons A) legitimate aim B)
proportionate [generally how the courts try and rule on human rights issues,
legitimate aim, and proportionality]

2. Moohan [2014] UKSC 67

Scottish independent referendum (franchise) act 2013 excluded prisoners from voting in the
independence referendum. ECHR has very controversially held Hurst v UK that the UK’s
blanket ban on prisoner voting was contrary to A3P1 ECHR (the duty to hold free elections at
reasonable intervals). Was the exclusion of prisoner voting in the IndRef contrary to ECHR

- UKSC held (5:2) that no A3P1 didn’t apply to referendums, only to elections

3. Christian Institute [2016] UKSC 51

Children and young people Scotland act 2014 made a provision for a named persons service
which every child in Scotland would have a designated named person responsible for promoting
that child’s wellbeing. Included within the NP’s powers and duties were obligations in certain
circumstances to share information about the child and his/her family with others

- Where these obligations in breach of the right to respect for family life under
Article 8 ECHR, UK unanimously held: yes, they were
Their reasons?
- To be lawful, an interference with Article 8 ECHR had to be a) in accordance
with the law, b) for a legitimate aim, and c) proportionate
- Ruled re information sharing were so obscure as to be unclear and for that reason,
inaccessible. Therefore, not in accordance with the law
- Rules re information sharing were for a legitimate aim
 - But their application could in individual cases, gave rise to a disproportionate
interference with Article 8 rights

4. Scotch Whisky Association [2017] UKSC

Alcohol minimum pricing Scotland Act 2021 provided for a minimum price per unit of alcohol.
Scottish Whiskey Association challenged this as being an unlawful restriction on the free
movement of goods in the EU (contrary to article 34 TFEU). ScotGov argued that the policy
could be justified as a reasonable legitimate and proportionate restriction on the free movement
of goods under article 36 TFEU, states can restrict the movement of goods when they can show
that it’s in the national interest of the country.
- Outer house, inner house, court of session and UKSC agreed with SG
unanimously.
UKSC reasoning:
1. Policy of minimum unit pricing pursued a legitimate objective,
2. it was not proven that less restrictive alternative means were available,
3. balancing health v market and economic impact was a matter in respect of which
the courts should be slow to second guess a legislature and that
4. the policy was subject to a sunset clause meaning that it would be reviewed after 5
years was also a relevant factor.

WEEK 10

Lecture 19: Legal challenges to devolution part 2

S29 SA says that an act of SP isn’t law so far as any provision relates to reserved matters
S29(3) key provision when it comes to evaluating whether an act of the Scottish parliament
relates to reserved matters, by reference to the purpose of the provision and its effect
2 key cases where this test has been sued by the UKSC

Imperial Tobacco v Lord Advocate 2021 UKSC 61: TPMSA 2010 had a ban of displaying
tobacco at point of sale and ban on selling tobacco products in vending machines

- Relates to reserved matter of the sale of supply of goods to consumers

- Relate to reserved matter of product safety

Continuity Bill Reference 2018 UKSC 64

- Not brought by a private party, brought by the UK government

- Act of SP that sought to regulate the roles that. EU law should play in Scotland
after Brexit
- EU Withdrawal Act 2018 passed by Westminster despite Holyrood refusing to
consent to it (cf the Sewel Convention) because they liked the environmental and
employment protections from EU law
- Instead, Holyrood passed the UK withdrawal from the EU (legal continuity) bill
known as the continuity bill
 - Significant difference between EUWA and the Continuity Bill, the latter being
referred to UKSC by the UK’s law officers

Three main arguments in the Continuity Bill case

1: that the bill as a whole related to reserved matter of the UK’s relations with the EU; UK
govt lost this government
2: that s17 of the bill modified SA98 s28(7): UK govt won this argument
3. That various other provisions of the bill modified the EU withdrawal act 2018 contrary
to SA98 Sch4: UK govt won this argument but only because EUWA was added very late in
the day to the list of protected enactments in SA98 Sch4

Continuity Bill judgement on reserved powers?

- UKSC judgement at paras 33 and 35, UKSC says that the bill was concerned
not with UK EU relations but with the domestic legal consequence in Scots
law of EU withdrawal (the effect is not reserved)

Continuity bill judgment on the sovereignty of parliament

- SA98 s28(7)- argument 2: this act doesn’t affect the powers f parliament of the
UK to make laws for Scotland
- C.B. s17 provided that the consent of the Scottish ministers would be required for
certain UK Statutory instrument to come into force in Scots law
- UKSC held this would modify SA98 s28(7) and was therefore unlawful
- See further on this point the UNCRC Bill reference
- Modified- implicitly amended, disapplied or repealed in whole or in part

UNCRC Bill Reference 2021 UKSC 42

- Give greater effect in Scots law to children’s rights

- Applying what the UKSC has said about SA98 s28(7) in the continuity bill
reference, the UKSC unanimously ruled as follows

1. Holyrood may not require that an act of the UK parliament is to be read and given
effect subject to the UNCRC meaning that s19 of the Bill is unlawful

2. Holyrood may not confer a power on the courts to declare that a provision of an
Act of the UK parliament is incompatible with the UNCRC) ss20-21 of the Bill are
also unlawful)

3. Holyrood may not provide that a UK minister when applying an act of the UK
parliament, is acting unlawfully because his or her actions are contrary to the UNCRC
(therefore s6 of the bill is unlawful)
Lecture 20: Independence and secession

Is there a right to secession:

- in the US the states have no right to secession (Texas v White)

- In Canada the provinces have no right to unilateral secession if a province
indicates that it wishes to secede the federal govt and the other provinces have an
obligation to discuss this, although not an obligation to deliver it (Quebec
secession reference 1998)
- In Catalonia they can’t even ask its population if it wishes to secede from Spain
- The question of constitutional right to secession was deliberately avoided in the
2014 indyref

Ensuring that the 2014 Indyref was lawful

- SA98 s30 a section 30 order may make any changes to SA (8 Sched 4 or Sched 5
which are expedient, a s30 order requires the consent of both house of parliament
and get the Scottish parliament
- Not so much a legal question, but a political agreement
- In 2012 in the Edinburgh agreement the UK and Scottish governments agreed that
there should be an Indyref that was fair legal and decisive
- A s30 order was accordingly made but it was time limited (its authority lapsed at
the end of 2014)
- On the basis of the s30 order, Holyrood passed the legislation required to hold the
indyref

Does Scotland have a legal right to self-determination: in international law this has been
generally given as a right to colonies to achieve independence from colonial rule. However, this
isn’t a universally applied right. Scotland isn’t a colony in the legal sense.

Could the Scottish parliament enact law for a second indyref without Westminster’s consent
- Would have to satisfy the test set out in the SA98 (imperial tobacco)
- Would have to comply with convention rights (Moohan)
- Could not relate to reserved matters: Purpose? Effect?
- Could not modify impeded or affect the ability of the UK Parliament to make law
for Scotland (SA98 s28(7) Continuity Bill, UNCRC Bill reference

Would such a Bill relate to reserved matters: SA98 sch 5-part 1 para 1 reserves the following to
the UK parliament; aspects of the constitution including the union of the kingdom of Scotland
and England

Would an indyref bill relate to this reserved matter?

Purpose
- To determine the opinion of the Scottish people
- To pave the way for a freshly negotiated constitutional settlement for Scotland
- To bring the union to an end
Effect: legal effect? See R (miller) v Sec of state. The referendum of 2016 didn’t change the law,
that in no way means it is devoid of effect. It means that unless and until acted upon by
parliament, its force is political rather than legal
- What is the legal effect of a yes vote in an indyref? Null, which helps the
prospects of the referendum happening again since the effect is legally null. Yet
the effect isn’t only talking about legal effects, political counts too

The lord advocates reference: in 2022 the lord advocate referred to UKSC the question whether
it would be competent for the Scottish parliament to enact a law authorizing a second indyref.
The UKSC heard argument in the reference in the autumn, judgment expected before Christmas
- Two questions for the UKSC to consider
1. does it have jurisdiction to decide this matter (or only jurisdiction to rule on Bills
the parliament has passed) and
2. If so, would such a bill be within competence or not

Mandates and the rule of law

- Political mandates come from elections
- But government and devolved parliament may act only within the scope of their
legal powers

Finally, what if Scotland did become independent, what would that mean in law? - Scotland
would become a new state, rest of the UK would be a continuing state. This is different to when
Czechoslovakia broke up, there was Czech Republic and Slovakia.
There would be implications for debt, assets, liability, currency etc. similar to when
Ireland left the UK