Posts Tagged ‘prerogative powers’
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
Repeal of the Fixed-term Parliaments Act: draft Bill published
The Fixed-term Parliaments Act 2011 was enacted as part of the agreement reached between the Conservative and Liberal Democrat Parties, when, in 2010, they formed the coalition government led by David Cameron. The idea of fixed-term parliaments had been around for many years. The problem has been that when a political party becomes a government, statutorily fixed-terms reduce the freedom Prime Ministers have long had to decide when they wanted to call an election would be constrained. Those in power have been reluctant to give up this freedom. (There is of course an overall limit – that an election much be called at least every 5 years.)
In 2011, the creation of the Coalition Government changed the political landscape. It was felt that, without setting a timetable for elections, there could be considerabe political instability if the majority partner in the coalition had the freedom to call an election when the opinion polls looked favourable, which could potentiallyhave left the minority in the lurch. The General Election 2015 was conducted within the framework laid down in the 2011 Act.
In 2017, the statutory framework was shown to be considerably less rigid than the title of the Act might have suggested. Mrs May, who had become Prime Minister in 2016, following the Brexit Referendum, thought good polling figures would give her a chance of establishing a more stable Government than that which followed the 2015 election. She was able to hold an election in 2017 because the Act provided that, where the House of Commons voted by a 2/3rd majority in favour of holding an early General Election. The political circumstances at the time enabled her to achieve that result.
In 2019, as the Brexit negotiations were drawing to a close, the Government – now led by Boris Johnson – wanted to find a way of ensuring that it could get a Brexit agreement through the Parliament. The Parliament was so divided on the issue that three attempts to get Parliamentary approval of a draft agreement failed. Mr Johnson thought that one way out of this difficulty would be to be to hold a general election which, if he won, would put the Brexit Agreement at the heart of Government policy. However, he could not do this because the statutory conditions for getting around the Fixed-term Parliaments Act timetable were not met. He did not have a 2/3rd majority in favour of holding a General Election (the route used by Mrs May) nor had he lost a vote of confidence which could also have triggered the calling of an early General Election.
Instead, he tried to prorogue Parliament – bringing one session to an end and starting a new session. But his purported use of the prerogative power to prorogue, which would have resulted in Parliament being totally shut down for 5 weeks, was ruled to be unlawful by the Supreme Court. (See R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.) He finally achieved his goal by getting Parliament to sidestep the Act through the enactment of the Early Parliamentary General Election Act 2019.
One item in the Conservative Party’s election manifesto for the 2019 General Election was that, if elected, a Conservative Government would repeal the Fixed-Term Parliaments Act. In December 2020 the Draft Fixed Term Parliaments Act (Repeal) Bill was published.
In fact, the Fixed Term Parliaments Act contained a built-in mechanism for its own review. Section 7, added during its parliamentary passage in 2011, provided that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established in November 2020, with 14 MPs and six members of the House of Lords. It is this Committee, chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin, that is now considering the draft Bill.
Two parliamentary committees had already reviewed the operation of the FTPA: the Lords Constitution Committee (2019), and the Commons Public Administration and Constitutional Affairs Committee (2020). Both raised important questions of principle about the whole idea of creating fixed-term parliaments. Was it right, in principle, that a Prime Minister should have the prerogative power be able to choose an election date? Why should general elections not be held within a timetable agreed by Parliament? The policy arguments in favour of fixed term parliaments as well made in an article by Robert Hazell from the Constitution Unit.
One feature of the draft Bill is that it includes provisions designed to prevent the courts from intervening in any decision taken by a Prime Minister to call an election. Two public lawyers, Professor Elliott and Professor Young, have given their views on the Bill including a consideration of whether the Bill’s attempt to restore the Executive’s prerogative power to determine the date for an election also mean that the potential for a challenge in the courts that an exercise of that power has been unreasonable can be eliminated.
Although the repeal of the Fixed Term Parliaments Act might at first sight seem like a rather narrow issue, it does raise important policy and legal issues which must be considered both while the current Bill is in draft form, and after any legislation has been enacted.
For further information, see the following articles:
By Robert Hazell at https://constitution-unit.com/2020/12/11/the-fixed-term-parliaments-act-should-it-be-amended-or-repealed/
By Professor Elliott at https://publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/
By Professor Young at https://ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-act-2011-repeal-bill-turning-back-the-clock/
The Fixed-term Parliaments Act: should it be amended or repealed?
A really interesting discussion about the proposed repeal of the Fixed Term Parliament Act, noting that there are more issues involved than might at first appear.
A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.
On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:
The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once…
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Independent Review of Administrative Law
In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.
Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.
Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.
The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.
The Terms of Reference for the Review state that the Review should
- examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government;
- bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
- consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.
More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).
The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.
Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.
The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html
Proposed Constitution, Democracy and Rights Commission
One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:
- the relationship between the government, parliament, and the courts;
- the functioning of the royal prerogative;
- the role of the House of Lords; and
- access to justice for ordinary people.
Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.
The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.
Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.
Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.
The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/
Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union
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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 