Friday 26 May 2017

Criminal Law Exams

If you are revising for an undergraduate criminal law exam (such as the Open University's W201 exam), remind yourself that

1 No undergraduate course in Criminal Law requires you to know about every criminal offence in existence - your course is limited to a finite number of offences.

2 For each offence within that finite set of offences - you need to be able to describe and explain the Actus Reus; Mens Rea and any defences specific to that offence (Murder is the one that has some specific defences that you should know) - and briefly apply the leading cases.

3 A useful revision exercise - which produces a tool that you can use for further revision - is to go through your manual or text book and create a spreadsheet. For each offence [and these are described in the rows across] - you should fill in cells, set out in columns
- Name of the Offence
- Relevant source (section of the relevant Act of Parliament; or 'common law offence (you might want to state a leading case which illustrates that it is a common law offence)
- Actus Reus - in numbered or bullet point list (within that cell)
- Mens Rea - in numbered or bullet point list (within that cell)
- any specific defences
- any related sections (such as definitions of elements of the AR or MR)
- a couple of key cases

4 Cases are useful - but beware of trying to memorise too many, and concentrating mainly on describing the facts. Your focus in cases must be on how that case helps us understand the point of law at stake.

This is the last Washminster post that I will be writing for exams in 2017. So I finish with this IMPORTANT message

Wednesday 24 May 2017

Facing a Law exam?

There are four matters to concentrate on. For each topic (for example -doctrines such as - Separation of Powers; Rule of Law; Parliamentary Supremacy : or criminal offences such as Homicide; Theft; Rape; Attempts....) make sure that you can succinctly deal with the key

* Concepts
* Arguments
* Cases
* Legislation

Could you describe and explain them to an intelligent friend? or deal with any question that they might fire back at you? (this is the value of working with other students as you prepare). Could you make a coherent argument in response to a request to discuss the strengths/weaknesses of the existing law - or for/against reform?

Are you confident that you know; could explain and use the relevant legislation or cases?

The diagram below might help you prepare your thoughts. [CLICK THE PICTURE FOR THE FULL SIZED VERSION]

"Condensing" is an important part of revision. [so you could review the topics and draw a diagram like the one below for each specific topic].

So is rehearsing explanations and arguments.

Is there a flow diagram you've seen - or could construct to logically set out your argument or solve a practical problem? (My students can use the Judicial Review diagram (W201) as a starter).

Are there any tables you could construct which summarise arguments - with a column for Strengths (with a second column for your evaluation of those claimed strengths) and a column for weaknesses (with a fourth for evaluation).

For Criminal Law you could draw up a table setting out in columns the Actus Reus; Mens Rea; and defences for each offence, along with the leading cases and a sentence to remind you of the key facts.

Revision is not about memorising lots of facts - and regurgitating them. It's about demonstrating your handling of the concepts; arguments; and authorities. Train for the exam, not like a child preparing for a spelling bee competition, but a football player - ready to flexibly respond to whatever strategy the opposing team uses on match day. Flexibility and skilful use of your acquired resources (your knowledge and understanding) are the key.

Monday 22 May 2017

How to answer a JR exam Question

Faced with a problem question in a law exam about whether Judicial Review can be used? This flowchart suggests a logical approach to structuring your answer.

(click on the image for a full sized version)

Don't forget that as well as problem questions on Judicial Review - which are all about specific decisions, the issue of Judicial Review is relevant to the Constitutional issues of Separation of Powers and Parliamentary supremacy. So do reflect on those issues.

Friday 19 May 2017

Freedom of Expression

Traditional 'freedom of expression' in England rested upon the principle that anyone is free to do what they want, unless the behaviour is specifically banned. Liberty is one sense, but a fragile one. The problem is that one person's use of the freedom may interfere with someone else's rights.

So throughout English history freedom of expression has been limited. The criminal law has been used to prevent obscenity; revelation of state secrets; sedition; inciting troops to mutiny; and in everyday life threatening, insulting or abusive words and behaviour are banned. Incitement to racial and religious hatred will bring criminal sanctions. There is criminal liability for contempt of court.

If someone's rights have been interfered with, there are remedies available in the civil courts - through actions for the torts of defamation and breach of confidence.

The European Convention on Human Rights, Article 10 states:-

  1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
This is not an absolute right - Section 2 makes that clear - but the right is also balanced against the rights of others set out elsewhere in the ECHR. Article 8 sets out the right to privacy - "Everyone has the right to respect for his private and family life, his home and his correspondence."

There is some useful caselaw on balancing these rights, including -

Thompson and Venables v News Group Newspapers
Campbell v Mirror Group Newspapers
Murray (by his Litigation Friends) v Express Newspapers plc

There's an excellent resource here on current privacy law.

Wednesday 17 May 2017

ECHR - Key Rights & Restrictions

What are the key rights in the European Convention on Human Rights? - and when can these be restricted? The answers can be found in the Convention itself

But it can be easy to lose sight of the key points - so I have prepared a hand-out for my Open University W201 students, which reformats the text to highlight what the rights cover - and when States can interfere with them. This is a revision document - so if it is of help to you - or you have friends studying Constitutional; or  Administrative Law (UK) or Human Rights Law - please feel free to use it, or share this post (Facebook; Twitter; Email - or whatever)

Article 8 – Right to respect for private and family life 

1.    Everyone has the right to respect for his private and family life, his home and his correspondence.

2.    There shall be no interference by a public authority with the exercise of this right except 

    1. such as is in accordance with the law and 
    2. is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion 

1.    Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.    Freedom to manifest one's religion or beliefs shall be subject only 

    1. to such limitations as are prescribed by law and 
    2. are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression 

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.    The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to 

    1. such formalities, conditions, restrictions or penalties as are prescribed by law and 
    2. are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association 

1.    Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.    No restrictions shall be placed on the exercise of these rights other than 

    1. such as are prescribed by law and 
    2. are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

·        Do not forget the principle of proportionality – R (on the application of Daly) v Home Secretary [2001] 2 AC 532

o   Is the legislative objective sufficiently important to justify limiting a fundamental right?

o   Are the measures taken rationally connected to this objective?

o   Are the measures taken no more than is necessary to accomplish this objective?

Monday 15 May 2017

Human Rights

Back in the early 1980s I was a law student in Sheffield. One of my "legal heroes" then was a solicitor for the National Council for Civil Liberties, who had won an important case - Harman v United Kingdom. She went on to become a key player in the Labour Party - and was its acting Leader in 2015.

I appreciate that we are in the middle of a General Election - and you might not like her politics - but if you are preparing for an exam on Human Rights (such as the W201 Open University course), it's worth reading a speech she made back in June 2015 - during the 800th anniversary of Magna Carta. I should also note that she is a QC.

Yesterday we celebrated the anniversary of Magna Carta which laid the foundations for our democracy, human rights and the rule of law in this country and throughout the world. Today we are determined to defend our Human Rights Act.

Labour values are about social and economic rights. And they are also about the civil and political rights embodied in the Human Rights Act. British values – evolved over centuries.
But these are not just Labour values – they are British values and universal human values.
The horrors of the Second World War inevitably made people think afresh about the rights to which every human person is entitled by virtue of their humanity - and how those rights could be protected.

An international endeavour - including Britons - set out a Charter which aimed at nothing less than establishing the norms of international decency, which would apply everywhere and protect everyone.

The Universal Declaration of Human Rights – adopted in 1948 – and the European Convention on Human Rights agreed in 1950, and which we ratified in 1951, embodies those efforts.
Simple but powerful, enshrining:
• The right to life, liberty and security
• The right to a fair trial
• Protection from torture
• Freedom of thought, conscience, religion, speech and assembly
• The right to free elections
• The right not to be discriminated against

The Human Rights Act inherits and embodies those universal values, and people around the world are still fighting for the rights it contains and we enjoy today. It has done an immeasurable amount to raise standards across European countries who suffered so much in WW2 which was its aim. 

The impact of the Human Rights Act has been profound.
It gives individuals rights which they can enforce here, in our courts, without having to traipse to Europe and wait years. But its impact has been much more far-reaching than the giving to individuals litigable rights - important though that is. It has precipitated good cultural and organisational change. It has changed the way public authorities reach decisions – both in respect of policies and individuals. It requires them to think not just about their own organisational exigencies but also about the rights of the individuals and communities affected by what they do.

When difficult judgements have to be made The Human Rights Act sets the framework for what has to be taken into account. The competing rights which have to be weighed in the balance. Like balancing the right of an individual to privacy against the right of freedom of the press. 
Or when considering the qualification of those rights. Where there is a right but it is not absolute – such as the right to family life which is protected except where it is necessary in a democratic society in the interests of national security public safety or the economic wellbeing of the country, for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others.  

Often there is no easy right or wrong decision. But The Human Rights Act makes the thought process right. That thought process is important for the individual but it is also a reassurance for institutions who make desperately difficult decisions because it allows them to demonstrate, that in making a decision, they did give proper weight and consideration to the relevant rights.

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising. Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:
“The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual - those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority. 
And we have to protect the individual from the state when it gets it wrong. I’ve experienced this myself when I was the individual whose rights were trampled by the state. 

In 1981 when I was legal officer at Liberty, acting for a prisoner in a case against the Home Office, the government prosecuted me for contempt for allowing a Guardian journalist, David Leigh, to come to my office to look at Home Office documents which had previously been secret but been read out in open court as part of our case. Despite the fact that they’d been read out and were therefore in the public domain, the Home Office were so keen to suppress what they showed that they used the power of government to throw everything at me.  I didn’t think I’d done anything wrong as the documents had been read out in court. But at that time Liberty was loathed by the establishment – not least for our strong stand against internment in Northern Ireland.  So my solicitor told me frankly that there was no chance I’d get off. He said, “who do you think the courts will prefer – you or the Home Office?” He was right. The High Court found me guilty of contempt. My appeal to the Court of Appeal was turned down by Lord Denning. And it was only when my case was heard in The European Court of Human Rights seven years later – that I won and was totally vindicated. 

The moral of my case is that if we’d had the Human Rights Act then I don’t think they would even have taken the case against me. And if they had, I’d have won in the British courts because the judges would have had to take my Convention Rights into account. 

But it’s also the case that if we’d not been part of the ECHR – which is what the government now seems to want – I’d never have been able to clear my name in Europe.

I know what it’s like to be an individual at the mercy of an overbearing state as a young lawyer, who’d done nothing wrong but with my whole career and reputation threatened. But I can understand why it’s easy to criticize the Human Rights Act and why people can feel uncomfortable about it. I know what it’s like from the other side too. 

I’ve been a Cabinet Minister and I know that The Human Rights Act is always going to be a nuisance to those in power because you want to get on and do things. 
But it’s right that as a government minister that you should have to look over your shoulder and that your power is constrained by other people’s rights. 

And it is challenging because we believe in the sovereignty of parliament - and human rights law tempers parliamentary thinking. But it should. Its right that the question is always asked - and the answer certified - “this proposal is compliant with our commitments to human rights.”
But remember that unlike other Bills of Rights in other parts of the world, the Human Rights Act does not allow judges to strike down Acts of Parliament. It creates a conversation between the judiciary and legislature, parliamentary sovereignty is preserved.

Sometimes we all know that defending the Human Rights Act can feel challenging because it can involve European judges protecting the rights of an unpopular individual from an elected authority, or protecting the rights of an unpopular minority from a popular majority. 
But it is the right thing to do. As Supreme Court Judge Brenda Hale said: 
“Democracy values everyone equally even if the majority does not”

We have to recognise that there is an inherent susceptibility for those who have power to extend it, to over-reach, and ultimately abuse it. And that is irrespective of how legitimate that power is and how they acquired that power and how strongly they believe they are doing the right thing. 
So we do need to have our executive and our legislature set within a framework of human rights. 
And, individuals do need to be able to court to directly enforce their convention rights.
And we do need to have an international framework for our own judiciary. Our judiciary is independent and uncorrupt. It is admired around the world. But it is not infallible and it does get pressurized by government. 

Having judicial oversight from a group of judges from outside our country is a check on them but also an important bulwark for our judiciary against the temptation of any government to tamper with them. Each individual jurisdiction benefits from the constant dialogue between the national and the international judiciary.

We here understand that there can never be any complacency - there has to be eternal vigilance in defending these rights. No country should ever feel so confident that it can regard itself to be in a “post-human-rights era.” Compliance with basic norms of human rights is not a state that you reach, and then you don’t need anymore. It requires constant vigilance for the rights of individuals, constant guarding of the rights of minorities, constant restraint on those who have power.

The government can’t “amend” some of the convention rights but still keep our place in the Convention. And leaving the convention would have serious and far reaching consequences.
As I’ve said, I think it’s important - for our own sake - that our human rights framework is set within an international system. But it’s also important for the human rights of those in other countries. 

Our commitment to human rights has to operate here at home. But our commitment is equally to human rights for people in the rest of the world. If we were to walk away from our international human rights treaty obligations, we would deprive ourselves of the ability to press other countries to accept high levels of human rights compliance. And we cannot say to others in Europe - particularly Eastern Europe - that they should stay within a European framework but we have somehow outgrown it, or don’t need it anymore.

One of the most important aspects of the international framework of human rights law is precisely so that governments can’t have their own definition of human rights. In seeking to do this, our government will be giving the green light to countries who abuse human rights to do the same. 
The European Convention on Human Rights is just one of a network of treaties we have entered into enshrining the same rights such as the UN convention against Torture and the UN Convention on the rights of the child. To leave the European Convention raises questions about our willingness to comply with those other commitments on human rights.
But standing up for human rights goes beyond our moral authority abroad. It’s about our character and identity as a country. Do we really want our country to no longer consider it necessary to adhere to and shape common norms of decency and justice abroad. I would say no.

We are here today not only because we care about human rights but because we feel they are under threat. The Government has signaled that they want to fundamentally undermine the Human Rights Act. This is what lies behind the announcement in the Queens Speech that they would be consulting on a “British Bill of Rights”. We think that even the consultation is the start of a slippery slope. 

You can’t be a bit in favour of human rights and a bit against it. You have to be clear and resolute about it.

The Prime Minister has already indicated that their plans will be delayed – so no bill in the Queen’s Speech but a promise of a consultation paper in the Autumn. No doubt this delay is not just because they have a slim majority and know there’s a lot of opposition to their plans. It’s also because their plans are incoherent. As I’ve said, they can’t opt out of some human rights but still be in the European Convention. 

They are also politically and constitutionally destabilising. The complete incorporation of the European Convention is written into the Good Friday Agreement and The Human Rights Act is written into the devolution settlement for Scotland. Amending the Human Rights Act would destabilise those settlements and have serious constitutional consequences undermining the Good Friday Agreement in Northern Ireland and the devolution settlement in Scotland. 

We will protect human rights. We are determined
• that human rights legislation should not be watered down,
• that its limits should not be narrowed,
• there should not be any circumstances where there should be a “opt out” from some of the human rights contained in the European Convention
• and that we should remain within the framework of the European Convention on Human Rights

There is a broad alliance of people and organisations in this country who will defend human rights. We will be part of that but we will work with those of other political parties because support for the Human Rights Act is not just the preserve of the Labour Party. There are those in the Tory party who believe in this just as strongly as we do and articulate it clearly – as did William Hague when he said

“The belief in political and economic freedom, in human rights and in the rule of law, are part of our national DNA.  Where human rights abuses are seen to go unchecked, our security and our prosperity suffer as well. And how we are seen to uphold our own values is a crucial component in our influence in the world.” 

He articulates how human rights are part of, not at variance with, our British values and matter for our place in the world.

There are MPs in all parties who support human rights. There are peers of all parties and who are in no party who will defend the Human Rights Act. 
In my role as interim leader of the Labour Party I give you my assurance that we are going to be clear with the Prime Minister that he must not go ahead with this. I’ve today written to the Prime Minister demanding that he drops these plans and I’d like to invite you to co-sign the letter.

Together we can send a strong signal that he mustn’t publish the consultation paper, he mustn’t publish a draft bill, he mustn’t entertain the idea of leaving the ECHR. 

What an irony that yesterday the Prime Minister was presiding over the celebration of Magna Carta at the same time he’s planning to undermine the Human Rights Act. No wonder that though he mentioned human rights in South Africa – and preyed in aid Nelson Mandela – and mentioned human rights in India – and preyed in aid Ghandi – he could not bring himself to mention Europe and our Convention.

But we believe that, together, we can prevent the government eroding human rights. Their policy is intellectually incoherent and, worse, it’s wrong in principle.

Though Labour is in opposition, not in government, we believe that in this case, on an issue of such profound importance, they can and should be held back.

Friday 12 May 2017

The Rule of Law

Another key concept in UK Constitutional Law!

Beware of treating this as a wishy-washy general idea about acceptable legal behaviour. There are some very specific meanings to the phrase.

Dicey proposed three aspects

(1) No person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land - therefore there should be no 'arbitrary' justice - behaviour should be prohibited in advance - not after the event - people we think might have mischievous intent shouldn't be locked up because they might commit a crime (despite the exasperation of certain Home Secretaries that the Courts are reluctant to deport or intern people who aren't convicted of anything, but are clearly evil.)

(2) No person is above the law - the ordinary law of the land applies to everyone, and as Barnett comments, "there must not only exist a system of courts available locally but the cost of having recourse to the courts must be such that there is real - rather than symbolic - access to the courts. For the law to be attainable, adequate legal advice and assistance must be provided at a cost affordable by all." (Once upon a time....)

(3) the general principles of the constitution are the result of ordinary cases in which rights have been determined. - Dicey meant that in the UK we don't have special courts for Administrative Law, but the ordinary courts applied the same approach whether they were dealing with bureaucrats or ordinary citizens involved in disputes with other citizens. (Perhaps a bit quaint in this era of judicial review and multi-national corporations.)

NOTE - I've tried to be deliberately provocative - how who you respond to such opinions in an exam question?

Reasoned evaluation is the key - and examiners look for it. You can practice by looking at newspaper headlines in the coming week - apply the "Rule of Law" to what the editor or the politician is arguing.

There are some useful cases to reflect upon - Prohibitions del Roy (1607); Entick v Carrington (1765) R v IRC ex parte Rossminster Ltd; R v Horseferry Road Magistrates Court ex parte Bennett; Phillips v Eyre; In re M (1993) - worth making brief casenotes on!

There are also some useful questions to consider as you revise. Do reflect on how the concept of the Rule of Law relates to other constitutional principles. There's an excellent book on the Rule of Law and related subjects by the late Lord Bingham.

Wednesday 10 May 2017

A little more on Parliamentary Supremacy/Sovereignty

One of the first writers to discuss the concept was Jean Bodin (1529/30 - 1596), who published in 1576 "Les Six Livres de la Republique". Cambridge University Press have taken some of the chapters and published them as "On Sovereignty" which was edited by Julian Franklin.

The context was that the idea of being "English" or "French" was changing from the feudal idea of being the subject of a particular king (as in "I am English because I owe my allegiance to the King of England") to being from a particular geographic area (the modern idea of "I am English because I was born/live permanently in England). Ideas of states based on geography, and have a single source of constitutional power began to develop.

Parliamentary Sovereignty is a concept based on that idea of there being a single source of power. Once the King was sovereign (this is not a pun!) - but after the English Civil War, and certainly after the "Glorious Revolution" in which Parliament 'chased James II out of town' and chose William and Mary to be the new Monarchs - it was recognised that power derives from Parliament. It can make or dissolve any institution (it can create, and subsequently abolish a Scottish Parliament; institutions of local government; Courts...); and define who can become King (Act of Settlement 1701).

Dicey is the most well known academic who sought to describe and define the principle. To slightly paraphrase him - it means

1 Parliament can pass any law it wants (unlike the US Congress which can have its laws struck down by the Supreme Court if in conflict with the Constitution)

2 A Parliament is not bound by its predecessors (so there can be no entrenched legislation which forces a later Parliament to use special procedures to change specific laws - like a 2/3 majority, or a referendum)

3 What Parliament has done cannot be questioned in the Courts (another aspect of the first meaning)

But Parliamentary Sovereignty has been challenged. It sits uneasily with British membership of the European Union. By passing the European Communities Act 1972. Our membership involves agreeing to limit our legislative freedom - and to be subject to decisions of the Court of Justice of the European Union.In the Thoburn case it was recognised that the usual principle of "implied repeal" didn't apply to the European Communities Act. Of course the answer to a claim that Parliamentary Sovereignty is dead - is that Parliament retains the sovereign right to repeal the European Communities Act.

Dicey is not the only view of the doctrine. There is an excellent, thought provoking book by Jeffrey Goldsworthy

Most Constitutional Textbooks rehearse the various arguments. If you are a law student sitting exams shortly - be sure that you are able to define the doctrine and discuss the various arguments about its strength today. Don't forget the importance of critically evaluating the arguments put forward by the various commentators.

Monday 8 May 2017

R (Miller) v SoS for Exiting the EU

Have you read, in full, the judgment in R (Miller) v SoS for Exiting the EU?

If you are taking an Exam involving Constitutional Law this summer - then I would advise you, as strongly as I am able, to

(1) Download the case - from the link above

(2) Read the case - what are the main arguments discussed? How do the judges deal with each of them?

(3) Evaluate - for yourself - the arguments made, accepted or rejected.

(4) Prepare revision cards on the case - and its arguments

(5) Practice explaining the case - and its reasoning - you don't need to torture a spouse or a friend (may be an ex- after you do so) - but go for a walk and work out how you would put it; or put a soft toy in a comfortable seat & explain to them (advantage - no awkward questions!)

Friday 5 May 2017

Dicey and Parliamentary Supremacy

One of the greatest writers about the British Constitution was Albert Venn Dicey. He lived from February 4, 1835 to April 7, 1922. His first major work, "An Introduction to the Study of the Law of the Constitution" appeared in 1885. He is most famous for his work in describing and defining the doctrines of "Parliamentary Sovereignty" and the "Rule of Law".

The doctrine of parliamentary supremacy was summarised by Dicey in three points:

Parliament can make law concerning anything. - this is in contrast to the position in many countries where the acts of the legislature can be struck down for conflicting with the Constitution (as can happen in the USA after the Supreme Court claimed the power in Marbury v Madison)

No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament) - put another way, no incoming Parliament is bound by previous parliaments. Again this contrasts with other countries where certain rules are 'entrenched' - meaning the rule can either never be repealed (as with the French Constitution Art 89 "The republican form of government shall not be the object of any amendment") or requires special procedures to amend ( such as Art 5 of the US Constitution requiring 2/3rd of all States or 2/3rd of both House of Congress to propose an amendment - and ratification of the amendment by3/4th of all state legislatures)

A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.
There is a very useful article on recent developments on Wikipedia (NOT A SOURCE I WOULD GENERALLY USE OR TRUST) - but whoever the author was, they have produced a useful resource.

Recent developments

Parliamentary sovereignty prevents judicial review of primary legislation passed by Parliament. However, in the late 20th and early 21st centuries, the notion of parliamentary supremacy was modified under the influence of five principal sources: The devolution of power to regional assemblies in Scotland (Scottish Parliament), Wales (Welsh Assembly) and Northern Ireland (Northern Ireland Assembly). All three assemblies can pass primary legislation within the areas that have been devolved to them. As the system remains devolved and not federal, the powers of these assemblies stems from the UK Parliament and can be suspended.

The UK's membership of the European Economic Community, later the European Union, from 1973. The EU represents, as the European Court of Justice ruled in 1963 in the case Van Gend en Loos, a "new legal order of international law for the benefit of which the [Member] States have limited their sovereign rights, albeit within limited fields". The UK became part of that legal order - though the fact that UK membership of the EU has been brought about through Acts of Parliament - principally the European Communities Act 1972 - raises the possibility that Parliament could, as a matter of UK law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK. {As subsequent events have shown!}

Following the case of Thoburn v Sunderland City Council certain statutes are protected as Constitutional Statutes. The case involved amendments to the Weights and Measures Act 1985 by the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 pursuant to Directive 80/181/EEC. This stated that Imperial measurements could be displayed so long as the metric measurements were displayed in larger type beside them. Thoburn was convicted for only using Imperial measurements. In his defence he argued that allowing even limited use of Imperial measurements was in contravention of the relevant directive and therefore in contravention of Section 2(2) of the European Communities Act 1972. This would have invoked the doctrine of implied repeal which is essential to the doctrine of Parliamentary Sovereignty. In his judgment, Lord Justice Laws held that certain statutes of constitutional importance including Magna Carta and the European Communities Act 1972 could not be repealed by implied repeal. As such, this has slightly limited Parliament's sovereignty.

The enactment of the Human Rights Act 1998 which incorporates part of the European Convention on Human Rights into domestic law. The Act gives UK courts the power to issue a declaration of incompatibility where they believe that the terms of an Act of Parliament are in contravention of the rights guaranteed by the Act. The effect of the declaration is not to annul the Act but send a signal to Parliament which may then choose to amend the offending provision. As with the UK's membership of the European Union, the principle of parliamentary supremacy means that Parliament can at any time vote to repeal the Act and indeed the UK's ratification of the Convention itself.

The increasing use of referendums. Although the result of a referendum is in no way binding on Parliament unless it has previously agreed that this will be case, in practice there will be considerable pressure on Parliament from the electorate to take the result into account.

However, Parliament may withdraw from the most of the commitments it has made or repeal any of the constraints it has imposed on its ability to legislate. Thus, Parliament theoretically remains almost entirely sovereign. The qualifier "almost" is provided because in 1921, after a century of dispute, Parliament passed the Church of Scotland Act 1921 which finally agreed that it does not have sovereignty over the Church of Scotland, the established church in Scotland.

There is a concept in political science of 'legal' and 'political' sovereignty. It can be argued that legal sovereignty has not been lost, because Parliament still retains all its theoretical powers. There are no legal limits on Parliament's sovereignty. However, as it is highly unlikely that the UK would repeal the European Communities Act and leave the EU, and it is unlikely the devolved legislature would be abolished, there are significant political limits on the sovereignty of Parliament. Nevertheless, it remains the case that the UK Parliament could do so without seeking the mutual consent of the EU or the devolved legislatures, as it did with the abolition of the Parliament of Northern Ireland in 1972, and that if it did, these repeals would be legally and politically binding.

This stands in contrast to the Acts of Parliament which have been used to grant independence from the UK to former dominions and colonies in the British Empire. Following the Balfour Declaration, the Statute of Westminster 1931 established a status of legislative equality between the self-governing dominions of the British Empire and the United Kingdom, and provided that Acts passed by the UK Parliament would not apply in the dominions without a dominion's express consent. It is difficult to see how the UK could later resile from that position. By way of further example, the UK Parliament passed the Canada Act 1982 which stated that the UK Parliament would no longer be able to amend the Canadian constitution. If the UK parliament were to repeal or amend the Canada Act 1982, it would be unenforceable as Canada is no longer subject to UK sovereignty.

Of course this year we have had the decision in R (Miller) v Sec of State for Exiting the European Union. A Must Read!!!

Wednesday 3 May 2017

Separation of Powers

The US Constitution is built upon the foundation of a separation of powers. Montesquieu (pictured above), amongst others, had highlighted the importance of ensuring that the differing functions of legislating (making law); executing the laws (carrying out the laws and providing day to day administration) ; and judging - both interpreting the laws and deciding in invidual cases - should be in the hands of separate groups of individuals. Hence a member of Congress cannot be at the same time a member of the Executive (serving the President) or a member of the judiciary.

On the face of it, Britain seems to show a fusion, rather than a separation of powers. The doctrines of ministerial responsibility are based on the principle that Government Ministers will also be members of either the House of Commons or the House of Lords. The Lord Chancellor was for centuries a member of Parliament (almost invariably in the House of Lords); the presiding officer and major player in the Lords; a member of Cabinet and an active judge.

However - it is useful to remember that Montesquieu actually praised Britain as a shining example of 'separation of powers'. It can be fairly described as a major principle of the British system. True fusion of powers ended with the decline of absolute royal power. 

The House of Commons Library have produced an excellent paper on separation of powers. It is available here. Students of UK Constitutional Law (including Open University W201 course) will find that the process of condensing the information in this paper will assist their revision immensely.