Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

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

leave a comment »

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

leave a comment »

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

Posted in Chapter 3

Tagged with

English Votes for English Laws

leave a comment »

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

leave a comment »

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

leave a comment »

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

Law for Lawmakers: A JUSTICE guide to the law

leave a comment »

JUSTICE has recently published Law for Lawmakers, a short introduction to some key legal and constitutional principles confronted by MPs, Peers and their staff in their work. This guide is designed to provide basic information and signposts to sources of legal advice and support.

Whilst the legal profession is well-represented in politics it has never dominated the House of Commons. For example, of Parliament’s 650 current MPs, only 88 practise law in England and Wales. As the makers of our laws, as our representatives, and in holding the Government to account, MPs and Peers wear many hats. Each of these roles requires MPs to grapple with the law every day. However, for over three-quarters of all first-time MPs this may be a very new experience.

This Parliament is set to consider constitutional questions ranging from the scope of surveillance powers for the security services to the withdrawal of the UK from the European Union; from a new devolution settlement for the Union to the repeal of the Human Rights Act 1998.

The JUSTICE guide doesn’t set out to answer those questions, but it may help to inform discussion and debate.

The guide may be found and downloaded at http://justice.org.uk/law-for-lawmakers-a-justice-guide-to-the-law/
It is an ideal introduction to the law-making process for all who are interested, not just MPs.

Written by lwtmp

October 16, 2015 at 12:12 pm

Prisoners’ Voting Rights: the view of the European Court of Justice

leave a comment »

I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)

Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.

The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus,  the Supreme Court held on that occasion that EU law did not apply.

The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.

Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of  Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.

There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.

Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.

For details of the ECJ judgement see http://curia.europa.eu/juris/document/document.jsf?text=&docid=169189&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=242509

Written by lwtmp

October 15, 2015 at 3:35 pm