Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘european union

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?

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Written by lwtmp

February 27, 2017 at 10:08 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

Posted in Chapter 3

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Law for Lawmakers: A JUSTICE guide to the law

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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

Law-making process in the European Union

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Those coming new to the study of law often struggle to understand precisely how the institutions of the European Union operate. There is a great deal of information readily available on the websites of EU institutions.

I have recently seen an excellent diagram on how the law of the EU is made, setting out the different stages that proposals from the European Commission must go before they become law.

To view, go to http://www.europarl.europa.eu/aboutparliament/en/0081f4b3c7/Law-making-procedures-in-detail.html and look at the slide show. (Click on the arrows in the middle of the picture.)

Written by lwtmp

October 6, 2014 at 9:29 am