Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Fixed-term Parliaments Act 2011 and the General Election 2017

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There were those who thought that the enactment of the Fixed-term Parliaments Act 2011 meant that there would be general elections only every 5 years, unless very special circumstances arose. Enacted by the Cameron-Clegg  government, it was designed to give some assurance that the Coalition Government would stay in power and would not be able to call a general election just on the whim of the Prime Minister.

What few people appreciated, however, was that the terms of the legislation did not in fact prevent the Prime Minister – now Theresa May – from putting in process the steps that would enable her to call an election, at a time when she was seeking to strengthen her position as Prime Minister, given her apparent strong position in the opinion polls. All she needed was a vote passed by a 2/3rds majority of MPs to trigger an early election.

As we now know, things did not work out like that. Her gamble did not pay off – at least not in the way she anticipated. So where are we with the Fixed-term Parliaments Act?

It remains on the statute book, and there are some who think that there will be a General Election – under the terms of the Act – in 2022. Political reality suggests, however, that the next election will take place before then. Exactly when will depend on specific factors such as  strength of the Prime Minister’s position,  and the progress of the Brexit negotiations.

I would not be surprised if, at some date in the not too distant future, steps were taken to repeal the legislation – unless perhaps there is another period of Coalition Government in the UK.

Written by lwtmp

July 8, 2017 at 3:19 pm

Determining the limits of Executive Power: the Miller case

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There is no doubt that 24 January 2017 was a big day for the Supreme Court. That was the date on which 11 Justices handed down their decision in R (on the application of Miller and another)  v Secretary of State for Exiting the European Union [2017] UKSC 5.
At issue was a fundamental constitutional question: could the decision of the UK to exit the European Union be implemented by the Government itself exercising executive power deriving from the Royal Prerogative, or did the process have to be authorised by Parliament passing a Bill which would give the Government the power to start the exit process.
The Government argued – in outline – that the power of the UK Government to enter into international treaty obligations is something that is exercised by exercise of prerogative powers. Thus, equally the Government argued – the power to disengage from treaty obligations could be done by exercise of those same prerogative powers.
Those who challenged the Government’s position argued that because accessing the EU had been accompanied by the enactment of the European Communities Act 1972, (which gave domestic effect to the UK’s obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015) the Act of 1972 had created legal rights and obligations in our domestic law. Owing to the well-established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament.
By a majority of 8 – 3, the Supreme Court upheld the decision of the High Court that the process of starting Brexit could not be started by the exercise of the prerogative, but must be authorised by an Act of Parliament.
The Supreme Court acknowledged that the 2016 referendum was an event of great political significance. However, its legal significance had to determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences.
The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation.
There has been a great deal of comment – much of it vitriolic and ill-informed – on the decisions of the courts. Those who argued in favour of the Government appeared to have forgotten some basic constitutional principles.
  • The Sovereignty of Parliament means that Parliament ( not the Executive) has the power to make and unmake laws (indeed that was a key argument of the case for Brexit – that the UK had ceded too much law making power from the UK Parliament to the EU).
  • The Separation of Powers means that there are checks and balances in our constitutional settlement, which implies that the judiciary must have the independence to reach decisions that the Government of the day may not like.

It can be argued that the Secretary of State for Justice and Lord Chancellor Mwas too slow to uphold her obligations under section 3 of the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary – certainly in the immediate aftermath of the initial High Court decision in which considerable abuse was heaped upon the judges. Those who accused the judges of ‘being out of touch’ showed that they had no understanding of what the role of the judges is and should be in a parliamentary democracy.

Of course, those in power who find that they are prevented from doing what they would like may be expected to rail against those who have put barriers in their way – recent events in the USA bear witness to this proposition. But it should be remembered that without checks and balances, government leaders may well be tempted to take more and more power to themselves, with potentially extremely serious consequences for the people they seek to govern.

One further question that this case provokes is whether the current mix of constitutional principle – the precise limits of which are unclear – and law is the mot appropriate basis on which the Constitution of the UK should be founded. Is one implication of the Miller case that the time has now come for the UK to adopt a written constitution?

Written by lwtmp

February 27, 2017 at 10:08 am

Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union

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One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of  R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a  summary of the case, and  to the whole judgement.

The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.

A summary of the decision can be found by clicking on the following link:

 

The full judgement is at

While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.

The judges held that the Sovereignty of Parliament was the most important  principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use  prerogative power to trigger the start of the process of leaving the EU.

Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding  that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.

 

 

 

Written by lwtmp

November 6, 2016 at 8:21 am

Outcome of the EU Referendum

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So, we now know the outcome of the vote on whether or not the UK should leave the EU. Clearly, over coming months and years, there will be considerable ramifications for the English Legal System. In particular the chapter in my book (chapter 3) on law making will – eventually – need considerable amendment. I will endeavour to keep an eye on developments as they occur. I do not intend to get drawn into essentially political speculation about what may or may not happen.

While the result has been welcomed by many, it has come as a shock to many others. I note that a Petition proposing a further referendum has already been proposed.

See https://petition.parliament.uk/petitions/131215

Written by lwtmp

June 24, 2016 at 2:47 pm

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English Votes for English Laws

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I have already noted the adoption by the UK Parliament of a procedure whereby Bills, or parts of Bills, which are certified by the Speaker of the House of Commons as applying to England alone will be voted on solely by MPs for English constiuencies. (See this blog 25 October 2015. The entry sets out in diagrammatic form the additional stages that a Bill to which these rules apply will have to go.)

We now have had the first example of a Bill being subject to the new Rules. When the Housing and Planning Bill 2015 was introduced in the House of Commons in October 2015, it was the subject of a Speaker’s Certificate that certain clauses did apply to England only. The original certificate has been replaced by a  new certificate reflecting changes that have been made to the bill.

A key part of the process involves the referring of the Bill to a Legislative Grand Committee. In January 2016, there was a short debate on this issue which revealed in particular the complaints of Scottich MPs that they were being treated as second class citizens.

To see the Speaker’s Certificates on the Bill, go to http://services.parliament.uk/bills/2015-16/housingandplanning/documents.html.

For the debate on the referral to the Legislative Grand Committee go to http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160112/debtext/160112-0003.htm#16011280004400

 

Written by lwtmp

February 10, 2016 at 10:55 am

Constitutional conventions

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Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.

The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at https://www.gov.uk/government/publications/cabinet-manual

Written by lwtmp

October 28, 2015 at 6:19 pm

English Votes for English Laws

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On 22 October 2015, the UK Parliament agreed new legislative procedures for enacting bills, or provisions in bills, that apply only to England. This has been one of the extremely controversial consequences of the Referendum on Scottish Independence.
The policy paper supporting the changes states:

English votes for English laws addresses the so-called ‘West Lothian Question’ – the position where English MPs cannot vote on matters which have been devolved to other parts of the UK, but Scottish, Welsh and Northern Ireland MPs can vote on those same matters when the UK Parliament is legislating solely for England.

It goes on to say:

These proposals change the process by which legislation is considered by the House of Commons so that MPs with constituencies in England (and where relevant England and Wales) are asked to give their consent to legislation that only affects England (or England and Wales), and is on matters that are devolved elsewhere in the UK. Those MPs will therefore have the opportunity to veto such legislation.

The new process will apply to government bills introduced in the Commons after the new rules are agreed. It will then apply to all parts of government bills which are certified by the Speaker as containing English, or English and Welsh, provisions. It will not apply to routine bills that implement the House’s spending decisions contained in the Estimates. It will also apply to secondary legislation.

The following changes to the legislative process are made:

  • Any bills that the Speaker has certified as England-only in their entirety will be considered by only English MPs at committee stage. The membership of this committee will reflect the numbers of MPs that parties have in England.
  • After the Report Stage, for bills containing English or English and Welsh provisions, there is then a process for gaining the consent of English or English and Welsh MPs. These MPs will form a legislative Grand Committee who will consider a consent motion for any clauses that the Speaker has certified as English or English and Welsh only. This is a new stage to allow all English or English & Welsh MPs either to consent to or to veto those clauses. At this stage no amendments to the text of the bill can be made but specified clauses can be vetoed by amendments to the consent motion. In the case of a bill which is England-only, or England and Wales only, this stage allows those MPs to consent to or veto the whole bill.
  • If clauses of the bill are vetoed by the legislative Grand Committee there is a reconsideration stage when further amendments can be made, to enable compromises to be reached. The whole House can participate in this stage, which is, in effect, a second report stage for disputed parts of the bill.
  • This is followed by a second legislative Grand Committee at which all English or English and Welsh MPs are asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.
  • Following report stage and any consent motions the bill continues to third reading, in which as now all MPs can participate. It then progresses to the House of Lords.
  • The legislative process in the House of Lords is unchanged.
  • If the bill is amended by the House of Lords, then when it returns to the Commons the Speaker is required to certify any motions relating to Lords amendments to the bill, on the same basis as before. Any votes on amendments that have been certified as England or England and Wales only will be subject to a double majority vote. That is to say that such amendments will have to be supported by a majority of English or English and Welsh MPs as well as a majority of all MPs before they can become law.
  • The process for bills that start in the House of Lords is similar, with bills being certified when they first arrive in the House of Commons.

English votes for English laws outline model for bills starting in the House of Commons

Special rules apply to Finance Bills and to Secondary Legislation.

The changes are clearly complex. The Government plans to ask the House of Commons Procedure Committee to review the new procedures after they have been used.

The above is adapted from the Government Policy Paper, available at https://www.gov.uk/government/publications/english-votes-for-english-laws-proposed-changes/english-votes-for-english-laws-an-explanatory-guide-to-proposals

A more detailed guide, as well as the changes to the standing orders of the House of Commons and accompanying Explanatory Notes are available at https://www.gov.uk/government/publications/english-votes-for-english-laws-proposed-changes

An excellent research review prepared by Richard Kelly in the House of Commons Library, which gives a detailed account of the background to the whole issue, is at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7339

Written by lwtmp

October 24, 2015 at 11:55 am