Public Law Essentials 9780748698318

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Edinburgh Law Essentials

PUBLIC LAW ESSENTIALS

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EDINBURGH LAW ESSENTIALS Series Editor: Nicholas Grier, Edinburgh Napier University Private International Law David Hill

Planning Law Essentials Anne-Michelle Slater

Revenue Law Essentials William Craig

Scottish Contract Law Essentials Tikus Little

Commercial Law Essentials Malcolm Combe

Employment Law Essentials Jenifer Ross

Succession Law Essentials Frankie McCarthy

International Law Essentials John Grant

Delict Essentials Francis McManus

Media Law Essentials Douglas Maule and Zhongdong Niu

Scottish Legal System Essentials Bryan Clark and Gerard Keegan

Intellectual Property Law Essentials Duncan Spiers

Evidence Essentials James Chalmers

Scottish Family Law Kenneth Norrie

Contract Law Essential Cases Tikus Little

European Law Essentials Stephanie Switzer

Trusts Law Essentials John Finlay

Roman Law Essentials Craig Anderson

Company Law Essentials Josephine Bisacre and Claire McFadzean

Property Law Essentials Duncan Spiers

Jurisprudence Essentials Duncan Spiers

Medical Law Essentials Murray Earle

Legal Method Essentials Dale McFadzean and Gareth Ryan

Public Law Essentials Jean McFadden and Dale McFadzean

Human Rights Law Essentials Valerie Finch and John McGroarty

Scottish Administrative Law Essentials Jean McFadden and Dale McFadzean

www.edinburghuniversitypress.com

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Edinburgh Law Essentials

PUBLIC LAW ESSENTIALS Second edition

Jean McFadden, M.A. (Hons), LL.B. (Hons) Visiting Lecturer in Law, University of Strathclyde and

Dale McFadzean, B.A. (Hons), F.H.E.A. Lecturer in Law, University of the West of Scotland

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Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: www.edinburghuniversitypress.com © Jean McFadden and Dale McFadzean, 2016 First edition published in 2007 by Dundee University Press Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in Bembo by 3btype.com, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 1 4744 1092 2 (hardback) ISBN 978 1 84586 136 0 (paperback) ISBN 978 0 7486 9831 8 (webready PDF) ISBN 978 0 7486 9832 5 (epub) The right of Dale McFadzean and Jean McFadden to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

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index

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CONTENTS Table of Cases...........................................................................

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Table of Statutes........................................................................

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Table of Conventions...................................................................

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 1  Introduction............................................................................. 1   2  The United Kingdom Constitution.......................................... 5   3  Doctrines of the Constitution.................................................. 11   4  The Judiciary............................................................................ 23   5  The Monarchy......................................................................... 31   6  The United Kingdom Parliament............................................. 43   7  The United Kingdom Government.......................................... 69   8  The Scottish Parliament............................................................ 83   9  The Scottish Government......................................................... 101 10  Judicial Review........................................................................ 107 11  Parliamentary Ombudsmen...................................................... 125 Index................................................................................................ 137

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table of cases Page A v Secretary of State for the Home Department [2004]UKHL 56; [2005] 2 AC 68 ................................................................................................................. 7, 10 Adams v Scottish Ministers 2004 SC 665 .................................................................... 97, 99 Anderson v Scottish Ministers [2003] AC 602 ............................................................. 96, 99 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 .................................................................................................. 117, 118, 124 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 ...................................... 40, 42 Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46.................... 97, 110–111, 123 Ayr Harbour Trustees v Oswald (1883) LR 8 App Cas 625 .............................................. 116 Baker v Glasgow District Council 1981 SC 258 .............................................................. 121 Black & Tennant (1899) 1 F 423 ..................................................................................... 109 Bradlaugh v Gossett (1884) LR 12 QBD 271 .............................................................. 63, 67 British Oxygen Co v South-West Scotland Electricity Board [1956] 1 WLR 1069 .......... 120 British Railways Board v Pickin; Pickin v British Railways Board [1974] AC 765 ....... 6, 10, 15, 21, 63 Brown v Hamilton District Council 1983 SC (HL) 1 ...................................................... 121 Buckhaven and Methil Magistrates v Wemyss Coal Co 1932 SC 201 ............................... 122 Case of Proclamations, The (1610) EWHC KB J22 ..................................................... 36, 42 Chertsey UDC v Mixnam’s Properties Ltd [1964] 2 WLR 1210 ...................................... 114 Church of Scientology of California v Johnston-Smith [1972] 1 QB522 ..................... 61–62 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 ....... 111, 117, 118, 124 D & J Nicol v Dundee Harbour Trustees [1915] AC 550 ................................................. 109 Darney v Calder District Council (1904) 12 SLT 546 ..................................................... 121 Duncan Sandys Case (1938) ........................................................................................ 61, 67 Eldon Garages Ltd v Kingston-upon-Hull CBC [1974] 1 WLR 276 ............................... 119 Ellen Street Estates Ltd v Minister of Health [1934] .............................................. 15–16, 21 Entick v Carrington [1765] EWHC KB J98 ............................................................ 7, 18, 22 Fox v Stirk [1970] 2 QB 463 ............................................................................................. 8 Glasgow Rape Crisis Centre v Home Secretary 2000 SC 527 ................................. 109–110 Graham v Glasgow Corporation 1936 SC 108 ................................................................ 122 Grand Junction Canal Co v Dimes (1852) 3 HL Cas 759; 10 ER 301 ............................... 28 Grunwick Processing Laboratories Ltd v ACAS [1078] AC655 ........................................ 120 Gunstone v Scottish Women’s Amateur Athletic Association 1987 SLT 611 ...................... 110 Guthrie v Miller (1827) 5 S 711 ............................................................................. 107, 123 HM Advocate v Watt 2002 SCCR 976 ............................................................................. 27 Home v Young (1846) 9 D 286 ....................................................................................... 110 Innes v Royal Burgh of Kirkcaldy 1963 SLT 325 ............................................................ 122

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Jackson v Attorney-General [2005] 3 WLR 733 ...................................... 7, 10, 18, 22, 57, 67 Jenkins v Robertson (1867) LR 1 Sc 117; 5 M (HL) 27 .................................................. 110 Joobeen v University of Stirling 1995 SLT 120 ....................................................... 108–109 Lavender & Son v Minister for Housing and Local Government [1970] 1 WLR 1231 ....... 115 Lee v Secretary of State for Education and Science (1968) 66 LGR 211 .......................... 120 London and Clydeside Estates v Aberdeen DC [1980] 1 WLR 182 ......................... 119, 120 McColl v Strathclyde RC 1983 SC 225 ........................................................... 112, 122, 124 MacCormick v Lord Advocate 1953 SC 396 ............................................................... 32, 42 McDonald v Burns 1940 SC 376 .................................................................................... 108 Macfarlane v Glasgow Licensing Board 1971 SLT (Sh Ct) 9 ............................................ 113 Meek v Lothian RC 1983 SLT 494 ................................................................................ 122 Moss Empires v Assessor for Glasgow 1917 SC (HL) 1 ..................................... 107, 119, 123 Nahar v Strathclyde RC 1986 SLT 570 .......................................................................... 122 Naik v University of Stirling 1994 SLT 449 ............................................................ 108–109 O’Reilly v Mackman [1983] 2 AC 237 ........................................................................... 108 Palmer v Inverness Hospitals Board 1963 SC 311 ............................................................ 120 Parliamentary Privilege Act 1770, Re [1958] AC 331 ........................................................ 62 Pepper v Hart [1993] AC 593 ..................................................................................... 62, 67 Pickin v British Railways Board see British Railways Board v Pickin R v Barnsley MBC, ex parte Hook [1976] 1 WLR 1052 ................................................. 118 R v Chator [2010] UKSC 52 ..................................................................................... 64, 67 R v Chief Constable of North Wales Police, ex parte AB [1999] QB 396; [1997] 3 WLR 724 ............................................................................................................. 116 R v Criminal Injuries Compensation Board, ex parte RJC [1978] Crim LR 220 ............ 116 R v Ealing LBC, ex parte Times Newspapers (1986) 85 LGR 316 .......................... 113–114 R v Graham-Campbell, ex parte Herbert [1935] 1 KB 594 ............................................... 64 R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford City Council [1979] QB 287 ....................................................... 134 R v Ministry of Defence, ex parte Smith [1996] QB 517 ................................................ 118 R v Port of London Authority, ex parte Kynoch [1919] 1 KB 176 .................................. 115 R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415 .......................................................................................................................... 110 R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] AC 603 ......... 17, 22 R v Somerset CC, ex parte Fewings [1995] 1 All ER 513 ............................................... 114 R (Association of British Civilian Internees – Far Eastern Region) v Secretary of State for Defence [2003] QB 1397 ......................................................................................... 118 Roberts v Hopwood [1925] AC 578 ....................................................................... 113, 118 Rossi v Edinburgh Corporation (1904) 12 SLT 435; (1903) 10 SLT 662 .................... 114, 121 Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281 ............................................. 97 St Johnstone FC v Scottish Football Association 1965 SLT 171 .................................... 108 Scottish Old People’s Welfare Council, Petrs 1987 SLT 179 ..................................... 110, 123 Shetland Line v Secretary of State for Scotland 1996 SLT 653 ......................................... 120 Smith & Griffin v Lord Advocate 1950 SC 448 ............................................................... 121 Starrs v Ruxton 2000 SLT 42 .......................................................................... 25, 29, 96, 99 Stockdale v Hansard (1839) 9 Ad & El 1; 12 ER 1112 ....................................................... 62 Stourton v Stourton [1963] P 302 ............................................................................... 63, 67

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tabl ei nodfe x cas e s

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Strang v Stewart 1864 2 Macph 1015 .............................................................................. 110 Stringer v Minister for Housing and Local Government [1971] 1 All ER 65....................... 116 Vine v National Dock Labour Board [1957] AC 488 ....................................................... 115 Watt v Lord Advocate 1979 SC 120 ........................................................................ 112, 113 West v Secretary of State for Scotland 1992 SC 385 ......................................... 107–108, 123 Wildridge v Anderson (1897) 5 SLT 206 ........................................................................... 28 Wilson v IBA 1979 SC 351 ............................................................................................ 110 X v Morgan Grampian Ltd [1991] 1 AC 1 .................................................................. 18, 22

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table of statutes Page 1688 1689 1695 1700 1706 1707 1733 1801 1829 1840 1842 1876 1879 1911 1920 1931 1936 1937 1943 1947 1949 1953 1958 1962 1963 1964 1967 1971

Bill of Rights ..................................................................................................... 6, 32 Art 9 ................................................................................................................ 61, 62 Coronation Oath Act ............................................................................................. 32 Bill of Rights ......................................................................................................... 64 Claim of Right .................................................................................................. 6, 24 Parliamentary Elections Act ................................................................................... 45 Act of Settlement ................................................................................... 31, 32, 33, 41 Act of Security of the Church of Scotland ............................................................. 33 Act of Union ........................................................................................................... 6 Act of Union ................................................................................................ 6, 32, 83 Art II ..................................................................................................................... 31 Parliamentary Elections (Scotland) Act s 4 ......................................................................................................................... 27 House of Commons (Clergy Disqualification) Act s 1 ......................................................................................................................... 45 Roman Catholic Relief Act s 9 ......................................................................................................................... 45 Parliamentary Papers Act ........................................................................................ 62 Defence Act ...................................................................................................... 40, 42 Appellate Jurisdiction Act ...................................................................................... 55 Ayr Harbour Act .................................................................................................. 116 Official Secrets Act ................................................................................................ 61 Parliament Act ........................................................ 7, 10, 22, 44, 49, 56, 57, 59, 66, 67 Official Secrets Act ................................................................................................ 61 Statute of Westminster s 4 ......................................................................................................................... 16 His Majesty’s Declaration of Abdication Act ........................................................... 32 Regency Act .......................................................................................................... 33 Regency Act .......................................................................................................... 33 Crown Proceedings Act .................................................................................... 26, 37 s 2 ......................................................................................................................... 26 Parliament Act ................................................................... 7, 10, 22, 49, 56, 57, 66, 67 Representation of the People Act ............................................................................. 8 Regency Act ..................................................................................................... 33, 42 Royal Titles Act ..................................................................................................... 32 Life Peerages Act .................................................................................................... 55 Town and Country Planning Act ......................................................................... 116 Betting, Gaming and Lotteries Act ....................................................................... 113 Sch 4 ................................................................................................................... 113 Caravan Sites and Control of Development Act .................................................... 114 Abortion Act ......................................................................................................... 47 Parliamentary Commissioner for Administration Act ...................... 125, 126, 127, 135 Sch 2 ................................................................................................................... 126 Sch 3 ................................................................................................................... 126 Sheriff Courts (Scotland) Act s 5 .................................................................................................................... 24, 28 s 12A ..................................................................................................................... 25

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1972 European Communities Act ................................................................. 6, 8, 17, 22, 85 1975 House of Commons Disqualification Act ............................................................... 45 s 2 ......................................................................................................................... 12 (1) ..................................................................................................................... 77 Ministerial and Other Salaries Act .......................................................................... 70 Ministers of the Crown Act ................................................................................... 80 1977 National Health Service Act s 84 ..................................................................................................................... 127 1978 Scotland Act .......................................................................................................... 83 Wales Act ............................................................................................................... 83 1980 Water (Scotland) Act ............................................................................................ 112 1981 Senior Courts Act ............................................................................................. 24, 25 1983 Representation of the People Act ........................................................................... 44 1987 Abolition of Domestic Rates etc (Scotland) Act ..................................................... 16 Channel Tunnel Act ............................................................................................... 47 1988 Local Government Finance Act .............................................................................. 16 1990 Law Reform (Miscellaneous Provisions) (Scotland) Act s 35(1) .............................................................................................................. 24, 29 1991 Dangerous Dogs Act .............................................................................................. 16 Ministerial and Other Pensions and Salaries Act ..................................................... 70 War Crimes Act ..................................................................................................... 49 1993 Health Service Commissioners Act ............................................................... 126, 135 s 2 ....................................................................................................................... 126 s 4 ....................................................................................................................... 126 Judicial Pensions and Retirement Act ..................................................................... 24 1998 Human Rights Act .............................................................. 5, 6, 7, 16, 18, 85, 93, 118 s 4 ........................................................................................................................... 7 Scotland Act .............................................. 6, 84, 89, 91, 93, 97, 98, 101, 103, 104, 105 s 30 ....................................................................................................................... 86 s 48 ....................................................................................................................... 77 s 91 ..................................................................................................................... 130 s 95 ....................................................................................................................... 25 Sch 5 .................................................................................................... 84–85, 86, 87 1999 European Parliamentary Elections Act .................................................................... 57 House of Lords Act ........................................................................................... 54, 57 Mental Health (Public Safety and Appeals) (Scotland) Act s 1 .................................................................................................................... 96, 99 2000 Bail, Judicial Appointments etc (Scotland) Act ................................................... 26, 29 2001 Anti-Terrorism, Crime and Security Act Pt 4 ......................................................................................................................... 7 House of Commons (Removal of Clergy Disqualifications) Act s 1 ......................................................................................................................... 45 2002 Protection of Wild Mammals (Scotland) Act ...................................................... 97, 99 Scottish Public Services Ombudsman Act ............................................. 130, 132, 135 s 5 ....................................................................................................................... 132 Sch 2 ................................................................................................................... 131 Pt 1 .................................................................................................................. 131 Pt 2 ................................................................................................................. 131 Sch 4 ................................................................................................................... 131 2004 Hunting Act ............................................................................................ 7, 10, 49, 57 2005 Constitutional Reform Act .............................................................. 14, 15, 46, 53, 55 s 3 ......................................................................................................................... 23 Prevention of Terrorism Act ..................................................................................... 7

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Electoral Administration Act .................................................................................. 45 Judiciary and Courts (Scotland) Act ....................................................... 23, 24, 26, 28 ch 5 ....................................................................................................................... 25 s 35 .................................................................................................................. 25, 26 s 39 ....................................................................................................................... 26 Damages (Asbestos-related Conditions) (Scotland) Act .................................... 97, 111 Fixed-term Parliaments Act .................................................................... 39, 44, 72, 90 Parliamentary Voting and Constituencies Act ..................................................... 43, 44 Scotland Act ..................................................................................................... 86, 89 Mental Health (Discrimination) (No. 2) Act ........................................................... 45 Scottish Independence Referendum Act ................................................................ 87 Scottish Independence Referendum (Franchise) Act ............................................... 87 Succession to the Crown Act ................................................................................. 31 House of Lords Reform Act ............................................................................ 59–60 House of Lords (Expulsion and Suspension) Act ..................................................... 60

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table of conventions Page 1950 1989 1992

European Convention on Human Rights .................................................. 1, 5, 16, 96 Art 5 ...................................................................................................... 7, 96–97, 99 Art 6 .......................................................................................................... 25, 26, 29 (1).............................................................................................................. 96, 99 Art 8 ................................................................................................................ 97, 99 Art 11 .............................................................................................................. 97, 99 Art 14 ..................................................................................................................... 7 Protocol 1, Art 1 .................................................................................................... 97 UN Convention on the Rights of the Child .......................................................... 17 UN Conference on Environment and Development (Rio Summit)........................ 17

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1 introduction Scots law deals with many specific subject areas, such as criminal law, administrative law and the law of delict, among others. Each of these areas is known as a “branch” of law. For simplicity, each of these branches is further categorised into two distinct groupings: public law and private law. There is no real technical reason for these groupings. They are simply a useful way of categorising the various branches of law under separate headings. This book is concerned with the branch known as public law and a useful starting point is to define what this branch signifies. With “public law”, the involvement of the State is paramount. Public law relates to the operation of government and the regulation of the relationship between government and citizens. It also regulates other public bodies, such as the courts, the Scottish Parliament, local government and even the police. Public law is usually considered to embrace two major branches of law: constitutional law and administrative law. The scope of this book will concentrate on constitutional law. For those readers who require an outline of administrative law it is suggested that they read Scottish Administrative Law Essentials by the same authors. There is no hard and fast definition of “constitutional law”. It is suggested that it covers those laws which regulate the structure and functions of the principal organs of government and their relationship to each other and to the citizen. There is also no hard and fast demarcation in the United Kingdom between constitutional law and other branches of the law. For example, family law raises questions about the protection of family life (involving consideration of the European Convention on Human Rights), and labour law may raise concerns about freedom of association and picketing – all matters of constitutional importance. As such, public law is a large and complicated subject which naturally involves a consideration of not only the relevant law but also the political and historical contexts within which the law operates. The aim of this book is not to provide a definitive exposition of public law in the UK. Instead, it intends to cover some of the most important aspects of the law in a manner which will hopefully facilitate ease of learning. To this end, we have included a glossary of basic public law terms to assist the novice reader.

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Basic Glossary

• The principal organs of government: T   he legislature, the executive and the judiciary • Legislature: This is the law-making body in any state. In the UK it consists of  “the Queen in Parliament” (and those bodies to which the Queen in Parliament has devolved legislative power). “The Queen in Parliament” means the House of Commons, the House of Lords and the monarch (queen or king). • Executive: This is the body responsible for the formulation of policy. It is also the body responsible for the carrying into effect of the laws made by the legislature. In law, the monarch is the head of the executive, but the real power lies with the Prime Minister and the Cabinet. So the executive is the Government, ie the Prime Minister and all the other Ministers (not all of whom are in the Cabinet), the Scottish Executive and the Welsh Ministers. • Judiciary: This is the body responsible for settling legal disputes and for interpreting and applying the law. It consists of the judges sitting in the Queen’s courts. In our system the judiciary is said to be independent of the legislature and the executive and this independence is a constitutional value of the highest importance. • Statute law: The body of principles and rules of law laid down in statutes (ie Acts of Parliament and Acts of the Scottish Parliament), statutory instruments, Scottish statutory instruments and statutory instruments of the National Assembly for Wales, as distinct from UK common law. Statute law is a superior form of law in that it can amend or overrule any inconsistent principle or rule of law found elsewhere (in common law or books or custom and practice), even those of the Scottish Parliament. • Common law: This refers to judge-made law. It consists of the body of principles and rules of law stated by judges in their opinions delivered on deciding various disputes or claims, or derived inductively from the examination of various opinions in various relevant cases. • [Royal] Prerogative powers: These are common law powers which the monarch can exercise on his authority. In practice, most of these powers are exercised only on the advice and authority of Government Ministers. Prerogative powers are not derived from statute, since they are common law, but they can be modified or abolished by statute and can fall into disuse.The courts also have a role in determining the existence, scope and proper use of prerogative powers.

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• Constitutional monarchy: This means a monarchy whose power is limited and can be exercised only according to the laws, customs and conventions of the constitution. The king or queen may reign but all significant acts of government are carried out on the advice of Ministers who are responsible to Parliament, or are actually carried out by the Ministers themselves in the name of the monarch. The monarch should be politically neutral and refrain from becoming involved in political controversy. • Conventions: These are rules of constitutional behaviour or political practice which are looked upon as binding by those whom they concern. They are not laid down either by statute or by common law. The courts will not enforce them, although they recognise their existence. For example, the Queen normally invites the leader of the party with the largest number of seats to form a Government. • Federal system (of government): In a federal system, the powers of government are divided between the general or central government on the one hand and the regional or State governments on the other. The USA and Germany are two well-known examples. • Unitary system (of government): There is one legislature or Parliament for the entire country and it is the supreme law-making body. The powers of any local, regional or sub-national legislatures which may exist are limited by and subordinate to the supreme legislature. This is the system we have in the UK. The Westminster Parliament had the power to prorogue (and eventually abolish) the Northern Ireland Parliament, as it has with the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales. • Devolution: This means that a superior body grants powers to an inferior body and has the power to override action taken by that inferior body, even within the range of the powers devolved. By legislative devolution, central government confers on an inferior body, in addition, the powers to make laws on matters which are specifically transferred to it, as with the Scottish Parliament.

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5

THE UNITED KINGDOM CONSTITUTION

A constitution embodies the rules which govern the structure and functions of government and the relationship between the State and its citizens. Most countries have a “narrow” constitution, consisting of a written document with a special legal status which sets out the framework and principal functions of government and the principles by which the organs of government operate. Such constitutions normally have a higher status than other laws and can be amended only by a special process different from that by which ordinary law is changed. There is often a special constitutional court which applies and interprets a narrow constitution, such as the Supreme Court in the USA, or the Federal Constitutional Court in Germany. The United Kingdom does not have a constitution in this narrow sense, since there is no single document from which the organs of government derive their authority. Instead, the UK has a “broad” constitution, consisting of a collection of legal and non-legal rules found to varying degrees in Acts of Parliament, case law and political practices and procedures. The disparate nature of these sources often leads to the UK constitution being described as “unwritten”. However, this is inaccurate and it is best to describe the constitution as uncodified, partly written or evolutionary. GENERAL CHARACTERISTICS As well as being uncodified, the UK constitution is also a unitary one, in that it is characterised by a single sovereign legislature and a centralised government. It does not, however, subscribe to a strict unitary model, and varying degrees of power have been devolved through the establishment of a Scottish Parliament, a Welsh Assembly and a Northern Irish Assembly. Many critics believe that a written constitution, in the narrow sense, coupled with a Bill of Rights, should be adopted in the UK. This would make the constitutional rights of citizens clearer and more easily accessible. This line of reasoning has been fuelled by our accession to the European Community/ European Union, and our incorporation of the European Convention on Human Rights (EHCR) by virtue of the Human Rights Act 1998. The existence of parliamentary sovereignty combined with the dominant position which the executive occupies in relation to the legislature as a result of, among other things, the party system and the “first-past-the-

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post” electoral system, has meant that governments are generally able to ensure parliamentary support for the implementation of their policies. More particularly, as a consequence of the doctrine of parliamentary sovereignty itself, the courts have no power to challenge the validity of legislation and there are no distinctive procedures for passing or amending constitutional laws. Although the constitution has evolved over the centuries with few major changes, its development cannot be fully understood without some knowledge of the historical processes which have helped to shape it. In part because of the overriding power of Parliament and in part because of the pliability of many constitutional conventions, the constitution has proved itself flexible and adaptable in the face of changing circumstances. Furthermore, it exhibits the principles of parliamentary executive and that of a constitutional monarchy whereby, under the influence of convention, the Sovereign’s functions are normally of very little political significance.

WHERE TO FIND PUBLIC LAW Legislation There are many sources of public law in the UK. The first of these is Acts of Parliament or statute law. Acts of constitutional significance do not have any special status and are passed using the normal legislative procedure. Important examples of public law statutes include:



• the Bill of Rights 1688 and the Claim of Right 1689 which laid out the foundations of parliamentary supremacy and the rejection of rule by prerogative right; • the Acts of Union 1706 and 1707 which created the Parliament of Great Britain; • the European Communities Act 1972 which incorporated European Community law into the domestic law of the United Kingdom; • the Scotland Act 1998 which re-established the Scottish Parliament; and • the Human Rights Act 1998 which incorporated ECHR into domestic law.

The peculiar importance attached in the UK to legislation flows from the relationship between the legislature and the judiciary, ie between Parliament and the courts. Under the doctrine of parliamentary sovereignty, the courts in Britain have no power to pronounce on the validity of legislation which has been properly enacted by Parliament (British Railways Board

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v Pickin (1974)). However this view has been modified as a result of the case of Jackson v. Attorney-General (2005). The House of Lords examined whether the Hunting Act 2004 was a valid Act of Parliament since it had been passed using the procedures of the Parliament Acts 1911/1949, that is, without the consent of the House of Lords. They declared it valid. In contrast, the United States Supreme Court has long possessed the power of judicial review, and can declare Acts of Congress and of the President to be unconstitutional. The British courts can interpret a statute but they cannot strike it down as being invalid. It is open to the UK Parliament at any time to alter the law, both statute law and judge-made law and, in this way, the UK Parliament always has the last word. Even in light of modern legislation such as the Human Rights Act 1998, the final say still lies with Parliament. The 1998 Act places an obligation on the courts to give effect to all legislation consistently with the Convention rights. Where this is not possible, certain higher courts may issue a declaration of incompatibility under s 4 of the 1998 Act. It must be noted, however, that this provision does not affect the sovereignty of Parliament and the issuing of such a declaration does not affect the validity, continuing operation or enforcement of any offending laws. Ultimately, Parliament must legislate to avoid any incompatibility with Convention rights. An example of this can be found in the case of A (and Others) v Secretary of State for the Home Department (2004) where the House of Lords held that the powers of the Secretary of State under Part 4 of the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) were incompatible with Arts 5 and 14 of the ECHR relating to the right to liberty and the right to freedom from discrimination. The ruling was accepted by the Government and the Part 4 powers under the ATCSA were repealed and replaced with a system of non-discriminatory control orders under the Prevention of Terrorism Act 2005. Common law (case law) The second source is common law or case law. This falls into two categories: (i) the common law proper; and (ii) statutory interpretation. The common law proper This consists of the laws and customs which have been declared to be law by judges in decisions in particular cases coming before them. For example, in Entick v Carrington (1765) it was held that a Secretary of State had no power to issue general warrants for the arrest and search of those publishing seditious documents.

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Statutory interpretation Important issues of public law may also arise from the courts’ interpretation of statutes. For example, in Fox v Stirk (1970), the court interpreted the meaning of “resident” in the Representation of the People Act 1949 as encompassing students living in a college or hall of residence, thus enabling them to vote in that constituency rather than the one where their home was. European Community law This became a source of public law when the UK joined the EEC in 1973 after the passing of the European Communities Act 1972. By virtue of the 1972 Act, the courts have to apply EC (or Community) law as part of the domestic law of the United Kingdom. The role of European Community law is complex and worthy of a discussion in its own right; however, the two important points to be made for the purposes of this discussion are:

(i) the overriding principle of Community law is the primacy of it.  This means that where a national law is in conflict with it, Community law prevails (to see the effect of this on the sov. of the UK Parl. see Ch. 3); and (ii) Community law can and often does confer rights and impose obligations on individual people in the Member States, and these rights and obligations are enforceable in the national courts. The law and custom of Parliament Parliament regulates its own procedures and a body of law and custom has developed throughout the centuries of Parliament’s existence. These rules are contained largely in Standing Orders, resolutions passed by either the House of Commons or the House of Lords, and in rulings by the Speaker of the House of Commons. Examples include the arrangement of business behind the Speaker’s chair, re-informally, the Speaker’s duty to protect minorities, the functions of the Leaders of the two Houses, and the allocation of time to the opposition parties. Generally, the ordinary courts have no jurisdiction to apply and enforce the law and custom of Parliament. Authoritative writers Where there are no relevant statutory or case authorities, the judiciary may consult “books of authority”. These include writings, books and articles not only by leading public lawyers, but also by historians

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and political scientists. They are not legally binding and examples include A V Dicey’s Study of the Law of the Constitution (1885) and Constitutional and Administrative Law (1971), now in its 15th edition by Bradley and Ewing (formerly Wade and Bradley). Conventions The term “conventions” is used to denote rules of political behaviour which are regarded as binding by those whom they concern but which would not be enforced in the courts if the matter were to be brought before them. Conventions evolve over a period of time and are followed through political self-interest, since damaging repercussions would ensue on any breach. There are many examples to be found, including:

(i) in law, the Queen may refuse to give the Royal Assent to a Bill. By convention, she does not do so but acts on the advice of the Prime Minister; (ii) the House of Commons will not allow the House of Lords to amend any financial provision in a Bill without the House of Commons’ consent; and (iii) the Cabinet and office of the Prime Minister are based purely on convention and are not established by Act of Parliament. Conventions are not unique to the UK constitution and are found in the constitutions of most democratic countries. For example, the United States President is, in constitutional terms, chosen by electoral colleges but, largely by convention, he is directly elected.

Essential Facts • The UK constitution is uncodified, ie not found in a single written document. It is a unitary constitution featuring devolution and a constitutional monarchy. • The constitution of the UK can be found in a number of key sources: Acts of Parliament; common law; European Community law; conventions; the law and custom of Parliament; and authoritative writings. • The sovereignty of Parliament means that the UK Parliament has no legal restrictions on what laws it can pass.

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• The UK courts can interpret a statute but they cannot strike it down as being invalid. It is open to the UK Parliament at any time to alter the law, both statute law and judge-made law, and, in this way, the UK Parliament always has the last word.

Essential Cases British Railways Board v Pickin (1974): if errors in the procedure of passing a Bill have occurred, it is for Parliament alone to correct them.The court cannot question the validity of any Act of Parliament. Jackson v Attorney–General (2005): the House of Lords examined whether the Hunting Act 2004 was a valid Act of Parliament since it had been passed using the procedures of the Parliament Acts 1911 and 1949; ie without the consent of the House of Lords. It declared it valid. A (and Others) v Secretary of State for the Home Department (2004): example of a declaration of incompatibility eliciting legislative change by Parliament.

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3 doctrines of the constitution In order fully to understand the workings of contemporary constitutional law, one must also be aware of the fundamental doctrines of the United Kingdom constitution. These doctrines are the embodiment of many years of constitutional history and lend explanatory significance to many of the concepts contained within public law. Therefore, the purpose of this chapter is to give the reader an overview of the key doctrines of the UK constitution. SEPARATION OF POWERS The classic exposition of the Separation of Powers is that of Montesquieu: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty . . . Again, there is no liberty if the power of judging is not separated from the legislative and executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes.” (The Spirit of the Laws (1748))

The doctrine of the Separation of  Powers recognises three separate organs of government, namely the legislature, the executive and the judiciary. In the UK, the legislature is represented by the UK Parliament and devolved institutions, the executive by Government in the development and administration of policy, and the judiciary by judges who settle disputes and interpret the law. Each organ should be vested with one main function of government only and should not interfere with the functions of another. It is debatable, however, to what extent this separation truly exists in the UK. Membership overlap Legislature and executive A complete separation of powers would mean that there should be no Ministers in Parliament; but, by convention, UK Government Ministers

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should be members either of the House of Commons or of the House of Lords. This in turn makes them accountable and responsible to Parliament. There is, however, a statutory limit placed upon the number of Ministers who may sit and vote as members of the House of Commons. That number is currently limited to 95 Ministers, by virtue of s 2 of the House of Commons Disqualification Act 1975. That same Act disqualifies many categories of office-holders from membership of the House of Commons, such as civil servants, police and members of the armed forces. Many civil servants, and the police, are also forbidden to take part in political activities, thus the separation of the legislature and the executive is quite strict and it is only Ministers who hold a dual role. The same can be said of the devolved institutions within the UK. Control The executive controls the legislature to a large extent. This is mainly because of the strong governments returned by the “first-past-the-post” electoral system, the strong party whip system, and the Prime Minister’s powers of patronage. Executive and judiciary There is a strict separation here and the separation and independence of the judiciary is assured by various means:

(a) Judges are paid a fixed, annual salary which is not dependent on an annual vote in the House of Commons, and is charged to the Consolidated Fund. Judicial salaries are set independently following the recommendations of the Senior Salaries Review Body (SSRB). The SSRB provides independent advice to the Prime Minister, and its recommendations are a matter of public record. (b) Judges hold office ad vitam aut culpam, ie for life and during good behaviour. (c) Judges are protected from actions of defamation by the law of privilege, ensuring that they can speak freely in judgment. Judiciary and legislature The vast majority of judges are ineligible to be elected. In addition, English judges can only be removed from office by addresses from both Houses of Parliament, and indeed there has been only one example of this since 1700 ( Jonah Barrington, an Irish judge, was removed in 1830). According to the doctrine of parliamentary sovereignty, the UK Parliament can,

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by passing legislation, nullify judicial decisions both prospectively and retrospectively. So, in that sense, the judiciary is subordinate to the legislature. Exercise of functions Executive and legislature Ministers (ie the executive) have legislative powers in that they may make delegated legislation, for example statutory instruments. An especial concern in this respect has been the controversially increasing use of “Henry VIII” clauses by Ministers. A Henry VIII clause is a provision in an Act of Parliament which enables primary legislation to be amended or repealed by subordinate or deligated legislation thereby foregoing the need for further parliamentary scrutiny. Executive and judiciary Essential judicial functions, such as the conduct of civil and criminal trials, are dealt with by the judiciary. However, many disputes are dealt with by tribunals which are staffed by people who are not judges, and who are appointed by the executive. These tribunals are exercising judicial functions, though in a less formal way than the court. Some matters are also dealt with by means of a public inquiry in which a reporter, appointed by the executive, or a Minister makes a decision in line with departmental policy, after hearing all the relevant arguments. Judiciary and legislature Each House of Parliament has the power to enforce its own privileges and to punish those who offend them, ie acting as judge of a Member’s conduct. In declaring and interpreting the law, the judges are making law, either in areas of the common law or in statutory interpretation. Judicial decisions are an important source of law in areas of police powers, civil liberties and administrative law. Reform of the role of Lord Chancellor Prior to June 2003, the Lord Chancellor was a member of the executive and had a seat in the Cabinet. He was also a member of the legislature, being Speaker of the House of Lords and also having a seat in the Lords. Furthermore, he was also head of the judiciary in England and Wales, a member of the House of Lords Appellate Committee and a member of the Judicial Committee of the Privy Council. The Lord Chancellor’s

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Department was also responsible for recommending individuals for appointment as judges in England and Wales. As a member of the Cabinet, the Lord Chancellor could not be politically impartial nor could he be impartial in his role as a government spokesman in the House of Lords. Thus, there were many criticisms of the position of the Lord Chancellor, not least being the lack of impartiality in dealing with appointments to the judiciary. In June 2003, the Prime Minister announced an end to the role of the Lord Chancellor as a judge and as Speaker of the House of Lords. A Department of Constitutional Affairs was established which incorporates most of the responsibilities of the Lord Chancellor’s Department. Lord Falconer was appointed as Secretary of State for Constitutional Affairs, with a seat in the Cabinet, and also became Speaker of the House of Lords. As part of the same package of reforms, the Government announced the establishment of an independent statutory Judicial Appointments Commission, and the creation of a new Supreme Court to replace the appellate jurisdiction of the House of Lords. The Supreme Court of the United Kingdom was established in October 2009 and is located in the historic setting of the former Middlesex Guildhall on Parliament Square. On the commencement of the Supreme Court all of the previous Law Lords became its first Justices. The creation of the Supreme Court reflected and enhanced the indepence of the judiciary from both the legislature and the executive. The enactment of the Constitutional Reform Act 2005 consolidated these changes to the role of Lord Chancellor. The Act removed entirely the functions of Speaker of the House of Lords and Head of the Judiciary in England and Wales. In July 2006, Members of the House of Lords elected their first Lord Speaker who assumed some of the Lord Chancellor’s previous responsibilities, including chairing debates in the chamber and speaking for the House on ceremonial occasions. Furthermore, a new Judicial Appointments Commission (JAC) was created in April 2006. This ended the Lord Chancellor’s previous position as head of the judiciary in England and Wales and the JAC assumed the role of appointing judges. In May 2007, the Department of Constitutional Affairs ceased to exist, and its functions were transferred to a newly created Ministry of Justice with responsibility for courts, prisons, probation and constitutional affairs. Lord Falconer retained his title and office as Lord Chancellor while also being appointed as the first Secretary of State for Justice. In addition, it was previously the case that if a person who was not a peer was to be appointed to the office of Lord Chancellor, then he or she would be elevated to the peerage upon appointment.This has also been changed by

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the Constitutional Reform Act, 2005 whereby it is no longer necessary for the Lord Chancellor to be a peer. SOVEREIGNTY OF PARLIAMENT This is also known as the legislative supremacy of Parliament and means that Acts of the UK Parliament are superior to any other source of law and that Parliament has unlimited law-making power. This peculiar concept marks the UK out from most other legislatures in the world. The legal basis for the principle of parliamentary sovereignty The traditional view is that of Dicey, which can be summarised in the following three tenets:

(a) no Act of the Queen in Parliament can be held invalid by a court of law; (b) no Parliament can bind its successors as to the form or content of subsequent legislation; and (c) there is no distinction in terms of procedure between ordinary statutes and those of constitutional importance. The importance of Dicey’s tenets has been reflected in a number of important decisions. In Pickin v British Railways Board (1974), Pickin sought to challenge the validity of an Act of Parliament, on the ground that Parliament had been misled during the course of the Bill through the legislature. The House of Lords held that no court of law can go behind an Act of Parliament, public or private, to investigate how it was introduced or what took place during its passage, even where irregularity or fraud was alleged. In Ellen Street Estates Ltd v Minister of Health (1934), it was held that Parliament could not bind itself as to the form of subsequent legislation and could not properly enact that provisions in one statute could not be altered by a subsequent Act other than by express words. Maugham LJ stated: “The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act, Parliament chooses to make it plain that the earlier statute is being to some extent repealed,

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However, some matters authorised by legislation are of such a nature that they cannot be undone by a subsequent Act of Parliament. For example, s 4 of the Statute of Westminster 1931 states that no Act of Parliament passed after 1931 shall extend to a Dominion unless it is declared in the Act that the Dominion has requested and consented to it. This appears to acknowledge a territorial limit to the sovereignty of Parliament. Practical limitations on parliamentary sovereignty The possibility of disobedience Though Parliament successfully enacted the poll tax legislation (the Abolition of Domestic Rates etc (Scotland) Act 1987 for Scotland and the Local Government Finance Act 1988 for England and Wales) the widespread disobedience and non-payment forced Parliament to repeal the legislation and introduce a more acceptable alternative. Dicey calls the possibility of disobedience an external limitation on the sovereignty of Parliament. The beliefs and opinions of MPs The Government will be unlikely to propose a piece of legislation which will not receive the support of Members of Parliament. Legislation cannot progress through the Parliament unless it has the support of a majority of MPs. Consultation with interested parties In consulting interest groups, the Government may bring about more acceptable legislation. For example, the British Veterinary Association was consulted in relation to the Dangerous Dogs Act 1991, which resulted in modification. Thus, consultation may inform and alter the content of appropriate legislation. International agreements and world status Since 1966, the UK has recognised the rights of the individual under the ECHR. The Convention has also been incorporated into the domestic law of the United Kingdom by virtue of the Human Rights Act 1998. Under the Human Rights Act, the Supreme Court, the Judicial Committee of the Privy Council, the English High Court, the Court of Appeal, the Court of Session, the High Court of Justiciary (operating in an appeal capacity) the Court Martial Appeal Court, and the Court

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of Protection have the ability to make declarations that an Act of the UK Parliament is incompatible with the provisions of the Convention. However, these declarations, though likely to be politically embarrassing, are non-binding. In addition, the UK is a contracting party to a number of other international Agreements, Treaties, and Conventions which place obligations upon the UK in a variety of areas. Examples include the Rio Climate Change Convention seeking to address greenhouse gas emissions, and the UN Convention on the Rights of the Child seeking to change how children are viewed and treated globally. Limitations arising from membership of the EU As a result of its membership of the European Union, the UK has agreed to be bound by European law. The European Communities Act 1972 ensures the applicability of European law in the UK and states that all directly effective EU legislation creates an enforceable right within the UK and must be enforced by all courts and tribunals. It also states that all UK law must be applied subject to European law. Therefore, European law overarches our system of national law and, if there is any conflict, it is European law which prevails. These provisions are fairly revolutionary in that they fundamentally undermine the concept of parliamentary sovereignty and the supremacy of the UK Parliament. The implications of the European Communities Act 1972 were discussed in great detail in the case of R v Secretary of State for Transport, ex parte Factortame (No 2) (1991). On appeal, it was affirmed by the House of Lords that an Act of Parliament contradicting EU legislation could not be enforced in the courts of the UK. Furthermore, since EU law had to be enforced, courts were entitled to issue orders to such effect. In effect, the 1972 Act allows European legislation to take precedence over that of the UK. There have been many positive effects of this principle, and some areas of UK law have been fundamentally changed for the better due to the influence of European law. In recent year, however, there has been growing discontent in relation to the UK’s continuing membership of the EU. In a bid to reassert UK Sovereignty, the present Conservative led Government intends to hold a referendum in early 2016 asking citizens whether the UK should remain a member of the EU. Recent debate on parliamentary sovereignty The modern view is that the Diceyan concept of parliamentary sovereignty no longer exists in its original form. Dicey’s theory attempts neatly

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to divide legal sovereignty from political sovereignty. But this cannot easily be achieved in today’s climate of multi-layered constitutionalism, where the UK Government has devolved power to Scotland, Wales and Northern Ireland, while also creating a culture of citizens’ rights via the Human Rights Act 1998. For example, under Diceyan sovereignty, the UK Government could abolish the Scottish Parliament or refuse to apply European legislation. However, because of political and diplomatic constraints, this would be difficult to achieve, though not impossible. The conflict between the traditional theory of sovereignty and the modern view is highlighted in the recent case of Jackson v Attorney-General (2005). In the Jackson case, obiter comments made by Lords Steyn and Hope suggest that the concept of parliamentary sovereignty may be re-adjusted by the courts in the near future. Lord Hope, in particular, advocates that the Rule of Law enforced by the courts is the ultimate controlling factor upon which the UK constitution is based. Therefore, if Parliament were to attempt the unthinkable, such as the abolition of judicial review, then the courts would step in to protect citizens’ rights under the Rule of Law. On the other hand, further obiter comments made by Baroness Hale and Lord Bingham firmly support the continued existence of Diceyan sovereignty. Specifically, Baroness Hale expounds the view that although Parliament may be constrained in its exercise of power by international obligations and political realities, these constraints are purely political and diplomatic as opposed to legal and constitutional. THE RULE OF LAW The Rule of Law is a nebulous concept. It is not a legal doctrine as such but is more philosophical in form. The Rule of Law means that matters should be regulated by law, not by force, and in this form the principle is common to all civilised societies. In X v Morgan Grampian Ltd (1991), Lord Bridge said: “The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.” The classic case on the rule of law is that of Entick v Carrington (1765), where the Home Secretary issued a general warrant which authorised King’s Messengers to break into Entick’s house and seize private books and papers. Entick sued, claiming that the Home Secretary had acted unlawfully. The court decided that the warrant was illegal since there was no Act of Parliament or other law which authorised it. Thus, a

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Government Minister was held not to be above the law and the unlawful entry amounted to trespass. In modern times the Rule of Law has become encapsulated in the following principles: (a) An absence of arbitrary power: Officials must be able to show legal authority for their actions, whether they be police constables or Ministers of the Crown. (b) Legal rights and duties must be determined, protected and enforced by the ordinary courts in accordance with the ordinary law. Where rights are determined by bodies other than courts, such as tribunals, the proceedings of the decision-making body should be characterised by openness, fairness and impartiality. (c) The rights of individuals must yield to the rights of society as a whole only in accordance with specific rules of law recognised by the ordinary courts. The emphasis is on the rights of the individual. (d) There must be clearly defined limits within which discretionary power is exercised. There has been an increasing practice of conferring discretionary powers on Ministers by giving them authority to make delegated legislation. It is important that limits are set and adhered to. (e) There must be adequate safeguards for human rights. MINISTERIAL RESPONSIBILITY The doctrine of ministerial responsibility performs the function of securing a level of accountability and control over the executive by Parliament. There are two aspects of responsibility: collective and individual. Under the doctrine of collective ministerial responsibility, all Ministers must either accept Cabinet decisions, or dissent publicly and resign, unless collective responsibility is waived by the Cabinet on a particular issue. This mechanism allows Governments to show a united front to Parliament and the public. Collective responsibility is followed slavishly by Governments since the executive must be seen as strong and there can be no doubt over its policies. Thus, if a Minister is placed under parliamentary pressure on a particular issue, the remainder of the Government will rally to give support since the policy will be a common one. On the other hand, individual ministerial responsibility ensures that Ministers are responsible to Parliament for the administration of their individual departments, ie a Minister is accountable for not only personal decisions but also the actions and decisions of civil servants. The most

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infamous example of this doctrine can be found in the Crichel Down Affair, when the Air Ministry had compulsorily purchased land for defence purposes in 1938. By 1954, the land was no longer required and it was transferred to the Ministry of Agriculture which ultimately let it out to a tenant. The original owner of the land was neither consulted nor offered the opportunity to regain ownership. An inquiry into the affair discovered that many other landowners had been similarly affected and that the Ministry had acted in an underhand fashion. This resulted in widespread parliamentary and public condemnation and the Minister for Agriculture, Thomas Dugdale, resigned, taking full responsibility for the actions of his department. Similarly, in 1982, the Foreign Secretary, Lord Carrington, took personal responsibility for mismanagement of the Foreign and Commonwealth Office in failing to appreciate the threat of Argentine invasion of the Falklands. In most cases, attempts are made to invoke ministerial responsibility by parliamentary questions or debate. In this way, parliamentary criticism can lead to public condemnation and might cause a resignation, but such resignations are becoming increasingly rare. In modern times, there has been a blurring of the distinction between questions of mismanagement and personal behaviour. Many resignations since 1945 have in fact involved questions of personal conduct, such as those of John Profumo in 1963 (who lied to the House) and David Mellor in 1992 (who was eventually forced out of the Cabinet following a war of attrition with the newspapers over his moral conduct). More recently, the former Home Secretary, David Blunkett, was forced to resign after factors in his private life led to the alleged speeding-up of an immigration application for the nanny of his son. In recent years, given the growth in the number of executive agencies, the notion of ministerial responsibility has been identified with the idea of ministerial accountability, and a policy/operational dichotomy has developed in some government departments. Thus, the blame for many acts of mismanagement within a government department may be attached to the agency head or civil servant directorate involved instead of, or as well as, the Minister. Corrective action within the department will, however, be undertaken by the Minister.

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Essential Facts • The doctrine of the Separation of Powers recognises three separate organs of government, namely the legislature, the executive and the judiciary. Each organ should be vested with one main function of government only and should not interfere with the functions of another. • Parliamentary sovereignty or the legislative supremacy of Parliament means that Acts of the UK Parliament are superior to any other source of law and that Parliament has unlimited law-making power. • In modern times, parliamentary sovereignty has been somewhat eroded by a number of practical limitations, such as the UK’s membership of the EU, and other international obligations. • The Rule of Law is common to all civilised societies and represents an absence of arbitrary power. The Rule of Law recognises all citizens as being equal before the law and ensures that all state action is authorised by law. • Countries which subscribe to the Rule of Law ought to have adequate safeguards in place to protect citizens from abuse of discretionary power and should also be able to protect fundamental human rights. • Ministerial responsibility ensures that Ministers are responsible to Parliament for the administration of their individual departments, ie a Minister is accountable for not only personal decisions but also the actions and decisions of civil servants. • In most cases, attempts are made to invoke ministerial responsibility by parliamentary questions or debate. In this way, parliamentary criticism can lead to public condemnation and may cause a resignation, but such resignations are becoming increasingly rare. Essential Cases Pickin v British Railways Board (1974): no court has the power to disregard an Act of Parliament or to question parliamentary procedure. Ellen Street Estates Ltd v Minister of Health (1934): Parliament cannot bind itself as to the form of subsequent legislation nor properly enact that provisions in one statute cannot be altered by a subsequent Act other than by express words.

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R v Secretary of State for Transport, ex parte Factortame (No 2) (1991): in effect confirms the practical limitations placed upon parliamentary sovereignty by EU membership. The European Communities Act 1972 allows European legislation to take precedence over that of the UK. X v Morgan Grampian Ltd (1991): description of the Rule of Law. Entick v Carrington (1765): classic exposition of the Rule of Law illustrating that power may not be exercised in an arbitrary fashion. Jackson v Attorney-General (2005): discussion of the legality of passing a Bill utilising the Parliament Acts 1911 and 1949, ie without consent of the House of Lords. Notable for the discussion of the doctrine of parliamentary sovereignty in a multi-layered context.

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4 the judiciary It is a fundamental constitutional concept that the judiciary ought to be separate from the executive, ie the Government. This is one aspect of the Separation of Powers which is unequivocally accepted in the UK constitution, while all others are modified. The principles of the Rule of Law and equality before the law dictate that justice be administered impartially and universally, and this would be jeopardised if the courts were subject to the pressure of government. Thus, the independence of the judiciary is strictly preserved under the British constitution and, to this end, s 3 of the Constitutional Reform Act 2005 guarantees the independence of the judiciary in any part of the UK. Under this provision, Ministers must uphold the continued independence of the judiciary and must not seek to influence particular judicial decisions through any special access to the judiciary. Furthermore, the Judiciary and Courts (Scotland) Act 2008 enshrined judicial independence in Scots law. If introduced a duty on Scottish Ministers, the Lord Advocate and MSPs to uphold the continued independence of the judiciary. Although appointed in both Scotland and England by the executive, the judiciary is, by a combination of legal rules and extra-legal factors, clearly independent of both the executive and the legislature. The independence of the judiciary is widely recognised and, for that reason, the Government will occasionally entrust to members of the judiciary the task of conducting inquiries into events of political significance, for example Lord Justice Leveson’s inquiry into the culture, practices and ethics of the press. APPOINTMENT OF JUDGES IN SCOTLAND Judicial appointments are a matter reserved to the Scottish Government. Full-time salaried judges are appointed by the Queen from a nomination of the First Minister (after consultation with the sitting Lord President unless the office is vacant). Historically, the appointment process in Scotland was highly criticised since it was almost entirely a political process with very little openness or impartiality. However, since 2002 the Judicial Appointments Board for Scotland (JABS) has taken responsibility for advertising judicial vacancies, interviewing candidates, and providing a pool of suitable candidates for recommendation to the Scottish Ministers. The Board is an advisory non-departmental public body (NDPB) under the provisions of

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the Judiciary and Courts (Scotland) Act 2008. It has 10 Board members, consisting of 5 legal and 5 lay members, including the Chair (who is a senior non-legal figure). The selection of individuals for recommendation by the Board is made entirely on merit and an individual may be selected for recommendation only if he or she is of good character. Only the legal members of the Board may assess the applicants’ legal skills and competencies, however, overall decisions about an applicant’s suitability to be recommended for appointment are made by the whole Board. When the Board has recommended an individual for appointment, the Scottish Government undertakes a number of further steps before the First Minister makes a final decision. These steps include consultation with the Lord President of the Court of Session, liaising with the Judicial Studies Committee and arranging a Royal Warrant. These steps can take a number of weeks to complete and an announcement of the new appointment will be made only after the Queen has signed the Royal Warrant of Appointment. Eligibility There are several statutory conditions of eligibility for judicial office. In order to become a sheriff or sheriff principal, a candidate must have been legally qualified as a solicitor or advocate for 10 years or more (Sheriff Courts (Scotland) Act 1971, s 5). Historically, candidates appointed to the High Court or the Court of Session would normally have been advocates but, since 1990, a new regime has widened the categories of those eligible candidates and provides that sheriffs principal, and sheriffs who have held office for not less than 5 years, are eligible (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s 35(1)). Likewise, solicitors enjoying extended rights of audience in the Court of Session or the High Court for a similar period may be appointed. Rules concerning the removal of judges Under common law, judges hold office ad vitam aut culpam – for life and during good behaviour. This rule has arisen partly from custom, and also from the Claim of Right 1689. The Judicial Pensions and Retirement Act 1993 has introduced a new retirement age for Court of Session judges and sheriffs of 70, with the possibility of an extension to 75. When it becomes necessary to remove a judge, there are differences in procedure in Scotland and England. In England, the process has been statutory since at least 1701, and the current legislation can be found in the Senior Courts Act 1981. Normally, judges in the senior courts are

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removable by the Queen, on receipt of an address presented to her by both Houses of Parliament. But the provisions of the 1981 Act do not extend to Scotland. Thus, up until the enactment of the Scotland Act 1998, there was no statutory mechanism for the removal of a Court of Session judge. Section 95 of the Scotland Act 1998 laid out an initial statutory procedure for the removal of a Court of Session judge. However, these provisions have now been superseded by Ch 5 of the Judiciary and Courts (Scotland) Act 2008. Under the 2008 Act, a full-time salaried judge may be removed from office only if he or she has been deemed unfit by reason of inability, neglect of duty or misbehaviour. A judge of the Supreme Courts of Scotland may be removed from office only by the Queen after recommendation by the First Minister. The First Minister may make such a recommendation only if the Scottish Parliament, on a motion made by the First Minister, resolves that it should be made. The First Minister may seek such a resolution only if he or she has received a written report from a tribunal constituted under s 35 of the 2008 Act concluding that the judge is unfit for office and giving reasons for that conclusion. In the case of sheriffs, a statutory procedure has existed for some years. A sheriff may similarly be removed from office on clearly defined grounds of inability, neglect of duty or misbehaviour. However, they may only be removed if a tribunal constituted under s 12A of the Sheriff Courts (Scotland) Act 1971 has provided the First Minister with a written report concluding that the sheriff is unfit for office and giving reasons for that conclusion. The First Minister must lay the report before the Scottish Parliament and may lay a statutory instrument before Parliament for the removal of the sheriff. TEMPORARY JUDGES In recent years, the Government has been enthusiastic about the idea of using more temporary judges. In Scotland, there have been important developments, particularly concerning temporary sheriffs. In the case of Starrs v Ruxton (2000) an issue arose as to the compatibility of a temporary sheriff ’s status with an accused person’s right to a fair hearing before an independent and impartial tribunal (Art 6 of the European Convention on Human Rights). The High Court held that possible hopes of appointment to a permanent position, as well as the short-term nature of the office, compromised the independence of the temporary sheriff and that the most important factor was the absence of security of tenure. Accordingly, Lord Cullen stated that it was necessary that such a situation be remedied and that legal guarantees of the independence of the judiciary be put in place.

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In response, the Bail, Judicial Appointments etc (Scotland) Act 2000 was passed by the Scottish Parliament which made provision for the abolition of temporary sheriffs in Scotland. In their place, it created the new office of part-time sheriff. However, debate still surrounded whether or not the new office of part-time sheriff completely conformed with Art 6 of the European Convention on Human Rights. As a result, the Judiciary and Courts (Scotland) Act 2008 further strengthened the independence of temporary judges. The 2008 Act brings the appointment of temporary judges within the remit of the Judicial Appointments Board for Scotland in making recommendations to the Scottish Ministers for appointment. Temporary judges are also now appointed for a fixed period of 5 years with automatic renewal in most cases. The removal of a temporary judge is dealt with by virtue of s 39 of the Judiciary and Courts (Scotland) Act 2008. A temporary judge may be removed from office by the First Minister when a Tribunal constituted under s 35 of the 2008 Act has reported to the First Minister that the judge is unfit to hold office by reason of inability, neglect of duty or misbehaviour, and the First Minister has laid the report before the Scottish Parliament. JUDICIAL PRIVILEGE Judges enjoy an absolute privilege in relation to actions of damages in delict. There is no right of action against the higher judiciary in what they do or say in their judicial capacity. The Crown Proceedings Act 1947 allows injured parties the right to sue the Crown, and to seek a remedy or damages on the basis of vicarious liability for the actions of Crown Servants. But s 2 of the 1947 Act clearly states that the Crown is not vicariously liable for acts or omissions of a member of the judiciary. Thus, judges continue to enjoy immunity at common law in actions of delict. Judges also enjoy protection under the criminal law. At common law, it is a crime to slander a judge or magistrate in reference to his official conduct or capacity. Threatening a judge is also a crime, as is bribing a judge, or attempting to do so. IMPARTIALITY OF JUDGES Judges are expected to abstain from political activities, and matters of public controversy generally. In 1955, the Lord Chancellor, Lord Kilmuir, laid down rules which sought to prevent judges from making appearances in any medium without first consulting the Lord Chancellor. Kilmuir felt that this would allow judges to isolate themselves from the media and any controversies. The influence of the Kilmuir rules have been somewhat

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eroded today, in that the passage of time has seen judges publish memoirs, write articles, appear on broadcasts and generally let their opinions be known. In 1987, this led to Lord Mackay removing the need to seek permission from the Lord Chancellor and since then judges have become increasingly vocal on controversial subjects. For example, Britain’s most senior judge, Lord Neuberger, President of the Supreme Court, recently launched a verbal attack on the Home Secretary for criticising immigration judges. He also criticised the recent cuts to legal aid funding. The political neutrality of the judiciary is ensured by their exclusion from the House of Commons, the Scottish Parliament and the National Assembly for Wales, by virtue of statute. It was historically true that Scottish judges sat in the House of Commons until excluded by statute in 1733 by s 4 of the Parliamentary Elections (Scotland) Act 1733. This came about because the then Prime Minister, Robert Walpole, faced a looming General Election, and the determined opposition of the Lord Justice-Clerk, who sought to enter Parliament against Walpole. A Bill on the Scottish electoral process came before Parliament which sought, among other things, to prevent judges of the Court of Session from standing for election. The plan backfired, however, as the Lord Justice-Clerk resigned from the Bench, returned to the Bar, and was elected MP for Clackmannanshire. Judicial salaries are charged on the Consolidated Fund. This means that there is no need to seek annual authority from Parliament, and no opportunity to debate the matter. The Senior Salaries Review Body provides independent advice to the Prime Minister, the Lord Chancellor and the Secretary of State for Defence on the remuneration of holders of judicial office. The Government usually accepts the recommendations of this body. The House of Commons will not discuss the conduct of a judge, except on a substantive motion (a motion specifically criticising a named judge, or supporting an address for his removal from office). It would appear that the Scottish Parliament will more readily discuss the conduct of a judge. For example, as a result of the case of HM Advocate v Watt (2002), the Scottish Parliament criticised Lord Abernethy for his comments upon a case where a man had been charged with rape and his decision that the accused had no case to answer where there was no evidence that he had used some degree of force or violent threats. The competence of a judge cannot be impugned at Ministerial Question Time or some equivalent occasion, for the substantive motion is the appropriate parliamentary mechanism for subjecting a judge to scrutiny and debate. Recently, a motion was moved for the removal of Lord Lane, after the “Birmingham Six” appeal, but this motion failed.

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Absence of bias Judges must be impartial between the parties before them if true administration of justice is to be achieved. Litigants must have confidence in the impartiality of judges hearing a particular controversy or dispute. In this respect, the common law rules of natural justice protect against bias. This is enshrined specifically in the rule against bias – nemo iudex in causa sua. Under this concept, the exercise of jurisdiction may be excluded on the ground of relationship to one of the parties, or of interest in the matters involved in the case. Where the matter is one of interest, the rule is that any pecuniary interest will disqualify – for example, if a judge were a shareholder in a company which was one of the parties to an action, he would be disqualified (Grand Junction Canal Co v Dimes (1852)). Where the interest is non-pecuniary, it must be shown to be substantial before disqualification can be made (Wildridge v Anderson (1897)).

Essential Facts • The independence of the judiciary is a fundamental principle of the UK constitution. Judges must be free from the pressure of government in order to achieve fairness and impartiality. To this end, their security of tenure is protected by a number of legal rules and Acts of Parliament. • Judicial appointments are a matter reserved to the Executive. Full-time salaried judges are appointed by the Queen from a nomination of the First Minister (after consultation with the sitting Lord President unless the office is vacant). The First Minister must consult and take advice from the Judicial Appointments Board for Scotland. • The Judicial Appointments Board for Scotland (JABS) has responsibility for advertising judicial vacancies, interviewing candidates, and providing a pool of suitable candidates for recommendation to the Scottish Ministers/First Minister. The Board is an advisory non-departmental public body (NDPB) under the provisions of the Judiciary and Courts (Scotland) Act 2008. • In order to become a sheriff or sheriff principal, a candidate must have been legally qualified as a solicitor or advocate for 10 years or more (Sheriff Courts (Scotland) Act 1971, s 5).

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• Candidates seeking appointment to the High Court or Court of Session would normally have been advocates but, since 1990, a new regime has widened the categories of those eligible candidates and provides that sheriffs principal, and sheriffs who have held office for not less than 5 years, are eligible (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s 35(1)). Likewise, solicitors enjoying extended rights of audience in the Court of Session or High Court for a similar period may be appointed.

Essential Cases Starrs v Ruxton (2000): an issue arose as to the compatibility of a temporary sheriff ’s status with an accused person’s right to a fair hearing before an independent and impartial tribunal (Art 6 of the European Convention on Human Rights). The High Court held that possible hopes of appointment to a permanent position, as well as the short-term nature of the office, compromised the independence of the temporary sheriff and that the most important factor was the absence of security of tenure. Accordingly, temporary sheriffs were abolished by virtue of the Bail, Judicial Appointments etc (Scotland) Act 2000.

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5 the monarchy The monarchy is the oldest institution of government in the United Kingdom and, although absolute power has been progressively reduced over the centuries, the monarch retains a significant constitutional role as Head of State. The United Kingdom is a constitutional monarchy – that is to say, it has a monarchical government established under a system which acknowledges a hereditary monarch as Head of State. The Queen is officially recognised as such and plays a formal role in the work of Parliament, but her position can be seen as more ceremonial in form rather than executive. Practically speaking, the Prime Minister, whose power is derived directly or indirectly from democratic elections, is the head of government and the actions of government are carried out on behalf of the monarch. The history of the monarchy, however, is very much alive in the numerous palaces and residences still in existence across the UK, and many royal traditions continue to be celebrated. Walter Bagehot, in his classic study The English Constitution, referred to the “dignified capacity” of the Sovereign and many commentators are of the opinion that the continuity and stability provided by the Sovereign is fundamentally important for the stability of the British constitution. The purpose of this chapter is to examine the legislation and other legal rules which govern the position of the monarch today and make the current Queen very much an important part of the constitution. TITLE TO THE CROWN AND SUCCESSION Title is derived from the Act of Settlement 1700, which was subsequently extended to Scotland by Art II of the Act of Union 1707. Under the Act of Settlement, succession to the throne is settled upon “the heirs of the body (being Protestant) of Princess Sophia”, the Electress of Hanover and grand-daughter of James I. The title descends lineally, according to feudal rules, and since the enactment of the Succession to the Crown Act 2013, the rule of male primogeniture no longer applies, ie males being preferred to females despite the fact that an elder female may be chronologically next in line to the throne. In determining the succession to the Crown, the gender of a person born after 28 October 2011 does not give that person, or their descendants, precedence over any other person. Any member of the Royal Family succeeding to the throne must:

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(a) take the coronation oath, by virtue of the Coronation Oath Act 1688; (b) declare himself to be a faithful Protestant, by virtue of the Bill of Rights 1688 and the Act of Settlement 1700; (c) swear to maintain the Church of Scotland and the Church of England, by virtue of the Act of Union 1707; (d) enter into communion with the Church of England, by virtue of the Act of Settlement 1700; and (e) not be a Roman Catholic by virtue of the Bill of Rights 1688 and the Act of Union 1707. Title to the Crown is a parliamentary one, and the succession may be altered only by Parliament. This has happened only one since 1714, when His Majesty’s Declaration of Abdication Act 1936, provided that Edward VIII’s abdication should take effect since he wanted to marry divorcée Wallis Simpson. The 1936 Act further provided that the brother next in line, George VI, should succeed to the throne and that Edward VIII’s issue and their descendants should have no right of succession. The title The present title is regulated under the Royal Titles Act 1953 which emerged as a result of an agreement by Commonwealth Ministers. The 1953 Act authorised the adoption by the Queen, for use in relation to the UK and those territories for which the UK Government is responsible for their foreign relations, of such style or titles as Her Majesty may think fit. By 1953 the Commonwealth included a republic – India – of which Elizabeth could not be Queen. So the present Queen Elizabeth is known as: “Elizabeth II by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.”

In MacCormick v Lord Advocate (1953), the use of the title “ER II”, signifying “Queen Elizabeth II”, was challenged in Scotland as a contravention of the Treaty of Union, since there had never been a “Queen Elizabeth I” of Scotland. The Court of Session held that the numeral did not derive from the Royal Titles Act 1953 but from the proclamation at the Queen’s accession in 1952; that nothing in the Treaty of Union prohibited the adoption of the style; and that, in any case, MacCormick had neither title nor interest to sue.

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Minority, incapacity, illness and temporary absence Such events are covered by the Regency Acts 1937, 1943 and 1953. These Acts provide for a regent who may exercise the functions of the monarch should they be physically or mentally incapacitated, absent or in minority (under the age of 18). Prior to 1937, Regency Acts were passed only when necessary. However, the Regency Act 1937 provided specific scope for a regent in law and also established the post of Counsellor in State to act on the monarch’s behalf when temporarily absent. The present Counsellors of State are the Duke of Edinburgh and the four adults next in succession (provided they have reached the age of 21): currently the Prince of Wales, the Duke of York, the Earl of Wessex and Prince William. The regent is normally the person next in line to the throne, not excluded by the Act of Settlement 1700, and a British subject, of full age, domiciled in the UK. Regency is automatic on the succession of a minor; in the case of incapacity, a declaration has to be made by any three of the following: the monarch’s spouse, the Lord Chancellor, the Speaker, the Lord Chief Justice and the Master of the Rolls. The declaration is made to the Privy Council and communicated to the Commonwealth. The regent may exercise all royal functions except assenting to a Bill to change the order of succession or to alter the Act of Security of the Church of Scotland 1706. Special provisions were made for the current monarch, Queen Elizabeth II, by the Regency Act 1953, which stated that the Duke of Edinburgh (the Queen’s spouse) could act as regent in the event of the incapacity of the Queen. The next four individuals in the line of succession would be eligible to succeed or be regents in their own right. FINANCING THE MONARCHY The monarchy is often described as an expensive institution, with royal finances clouded by secrecy. In reality, the Royal Household is committed to ensuring that public money is spent efficiently, and to making royal finances open and transparent. The Royal Household publishes an annual summary of Head of State expenditure, accompanied by a full report on all royal public finances (these reports can be accessed through the monarch’s official website at www.royal.gov.uk). Sources of funding There are three distinct sources of funding for the monarchy, or officials of the Royal Household acting on the monarch’s behalf, in both public and private capacities. These are:

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(i) the Sovereign Grant; (ii) the Privy Purse; and (iii) the Queen’s personal income. The Sovereign Grant This is the sum of money provided by Parliament to the Royal Household in support of the Queen’s official duties. It is often misunderstood as a “salary” for the Queen but this is not the case. Rather it is a source of funding for the Queen’s official work as Head of State and Head of the Commonwealth. It also includes the maintenance and expenses of the Occupied Royal Palaces: Buckingham Palace, St James’s Palace, Clarence House, Marlborough House Mews, the residential and office areas of Kensington Palace, Windsor Castle and the buildings in the Home and Great Parks at Windsor, and Hampton Court Mews and Paddocks. The Sovereign Grant is provided by the Treasury and consolidates the funding previously provided through the Civil List and Royal Grants-inAid. Funding for the Sovereign Grant comes from a percentage of the profits of the Crown Estate revenue (initially set at 15 per cent). This currently equates to around £36 million and is reviewed every 5 years by the Royal Trustees (the Prime Minister, the Chancellor of the Exchequer and the Keeper of the Privy Purse). Annual financial accounts are published by the Keeper of the Privy Purse. Royal expenditure is subject to the same audit scrutiny as other government expenditure, via the National Audit Office and the Public Accounts Committee. The Privy Purse This refers to the income obtained from the Duchy of Lancaster which is used to meet both official and private expenditure incurred by the Queen. Since 1399, the Duchy of Lancaster has remained separate from the Crown Estate and consists of a portfolio of land, property and assets held in trust for the Sovereign in her role as the Duke of Lancaster. The main function of the Duchy is to provide an independent source of income for the Queen. It is currently used to meet any expenditure not covered by the Sovereign Grant and also to pay for the expenses of other members of the Royal Family. The net revenues paid to the Sovereign are currently in the region of £16 million per year. The Queen’s personal income Used to meet purely private expenditure, this source of income is derived

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from the Queen’s private estates and investments. The public are often mistaken in thinking that these include the royal palaces, the Crown Jewels and other treasures. But such things are in fact held by Her Majesty as Sovereign, and must pass on to her successor. The Queen does, however, own, as a private individual, the estates of Balmoral and Sandringham. No accurate measure of the Queen’s personal wealth can be made but it is thought to be somewhere in the region of £300 million or more, although taking into account the holdings held by her in trust as the monarch, this rises to around £17 billion. The Prince of Wales The Prince of Wales funding is overwhelmingly provided for by the Duchy of Cornwall. The Duchy was created in 1337 by Edward II for his heir and its primary function is to provide an income for the current and future Princes of Wales. The Duchy consists of approximately 54,000 hectares of predominantly agricultural land and, in the year 2014–15, provided the Prince with an income of over £19 million. Additional members of the Royal Family Only the Queen and the Duke of Edinburgh receive annual parliamentary allowances. All other allowances are now paid by the Queen from her personal income. Taxation Since 1992, the Queen has voluntarily agreed to be subject to the same taxes as ordinary citizens. This includes income tax, council tax, value added tax and capital gains tax. However, there are a few areas where the Queen is exempt from normal taxation. This occurs most notably in relation to inheritance tax, since bequests from Sovereign to Sovereign are exempt. This is necessary in order to maintain impartiality and financial independence. The Duchy of Cornwall is exempt from taxation but the Prince of Wales pays voluntary contributions to the Exchequer. All other members of the Royal Family are subject to taxation in the same way as ordinary citizens.

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DUTIES OF THE SOVEREIGN The duties of the Sovereign are wide and varied. As Head of State, the Queen must undertake certain constitutional duties and many formal acts of government require her participation. These include signing state documents, receiving reports from ambassadors, reading Cabinet papers, giving audiences to the Prime Minister and visiting Commonwealth Ministers. The Queen also attends many state occasions, such as the State Opening of Parliament each session. In her role as Head of State, she must be politically neutral, but retains the rights to be consulted, to encourage and to warn. What influence the Sovereign will actually have on her Ministers will depend on a number of factors, including the experience and the character of the individuals and the policy area concerned. As “Head of Nation”, the Queen has a less formal role but one which is more important in terms of social and cultural functions. These include acting as a figurehead for national identity and unity, carrying out charitable work, visiting local communities and recognising achievement through honours, awards and financial support. When both roles are combined, it is recognised that the monarch provides a large measure of stability within the UK constitution. Political and economic trends may fluctuate wildly, but the system of constitutional monarchy provides a stable foundation for the country. The Queen has an unrivalled knowledge of politics within the UK and successive Prime Ministers have been able to benefit from her insights through weekly audiences.

THE ROYAL PREROGATIVE The Royal Prerogative is difficult to define. It has been described as those inherent legal attributes which are unique to the Crown. Inherent in that they are derived from custom and the common law, rather than statute; legal in that they are recognised and enforced by the UK courts. Furthermore, the courts may also determine their limits, as in The Case of Proclamations (1611) in which a proclamation by the King, forbidding building construction in and around London, was held to be unlawful by the courts. According to Dicey, the Royal Prerogative was “the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown”. The use of the word “residue” in Dicey’s definition is important, since the prerogative powers cannot be enlarged.

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They exist merely in the form of residual powers. Prerogatives have been abolished or diminished by statute (such as the Crown Proceedings Act 1947) and more and more of the prerogative powers have been transferred to the Government. There are, however, still some which remain “personal” to the Sovereign. The “personal” prerogatives of the monarch The main personal prerogatives of the monarch are often listed as follows:

• • • • •

the appointment of a Prime Minister; the dissolution of Parliament; the dismissal of Ministers; giving the Royal Assent; and conferring various appointments and honours.

However, the extent to which the Queen exercises her own discretion in these matters is a topic of great debate. The appointment of a Prime Minister The Queen’s choice of Prime Minister is governed by convention and political realities. She must appoint the person who can form a Government which will have the confidence of the House of Commons. Normally, this will be the leader of the party which has a majority of seats in the House. But a change of Prime Minister may occasionally become necessary through resignation, death or dismissal. Dismissal is very unusual and, indeed, has never occurred since the end of Queen Victoria’s reign. Resignation, however, is more common and may occur in a number of circumstances:

(a) through defeat in a General Election; (b) through internal dissension causing the collapse of a Government; (c) as a result of a defeat on a vote of no confidence in the House of Commons; (d) due to ill health, old age or other personal reasons; and (e) through the governing party persuading the Prime Minister to leave office, since he has become a political liability.

In such circumstances, the monarch will normally choose the leader of the party which wins a majority in an election. But if no party wins an overall majority, as in February 1974, it may not be immediately clear

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whether the existing Prime Minister or the Leader of the Opposition or some other party leader will have sufficient support to govern effectively. In February 1974 the Conservative holding was reduced from 323 seats to 296, while the Labour Party had 301 seats but no overall majority in the House of Commons of (then) 635. The Prime Minister, Edward Heath, did not resign but instead tried to form a coalition with the 14 Liberal MPs. Having failed to do so, he resigned and the Queen sent for Harold Wilson, as leader of the largest party in the House of Commons, and he formed a minority Government and thus became Prime Minister. In the General Election of May 2010, none of the political parties achieved the 326 seats needed for an overall majority in the House of Commons. The Conservative Party won the largest number of votes and seats but still fell 20 seats short. This resulted in a “hung Parliament” where no single party was able to command a majority in the Commons. Unlike in February 1974, the potential for a hung Parliament had this time been widely predicted and both the UK and its party leaders were better prepared for the constitutional process that would follow such a result. Consequently the Conservative Leader, David Cameron, and the Liberal Democrat Leader, Nick Clegg, quickly formed a Coalition Government – the first in British history to arise directly from an election outcome. Consequently, in such difficult situations, the Queen’s position can be summarised as follows:



(a) give the existing Prime Minister (if there is one) or the leader of the largest party an opportunity to form a coalition or reach an agreement about forming a Government; (b) if that fails, send for the leader of the next largest party and give him a similar opportunity; (c) in the unlikely event of that failing, the existing Prime Minister would presumably ask for a dissolution and a fresh General Election.

This is all very straightforward under a two-party system but if multiparty politics should become the norm in Britain, perhaps arising from the introduction of proportional representation for elections at Westminster, the conventions of the two-party system would be of limited guidance to the monarch. The question would inevitably have to be solved by interparty bargaining. But if this failed, it could fall to the monarch to exercise a personal judgement. This would be highly controversial, and would have major political repercussions. The question to be answered in such a hypothetical situation is: should the decision be left to the Queen and her personal advisers or should the decision be taken by, for example, the

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Speaker of the House of Commons, or a ballot of all MPs? The answer is a moot point. Dissolution of Parliament Prior to the Fixed-term Parliaments Act 2011, the Queen had the authority to dissolve Parliament and cause a General Election to be held. In such circumstances, the Queen would have acted upon the advice of the Prime Minister. This meant that a Prime Minister had a great deal of control over the timing of General Elections. Under the provisions of the 2011 Act, parliamentary elections must now be held every five years. The dismissal of Ministers The Queen has a prerogative power to dismiss Ministers either singly or collectively. In reality, the fate of individual Ministers lies with the Prime Minister. As for Governments, none in the UK has been unequivocally dismissed since 1783. So, in modern times, it would certainly be viewed as unconstitutional for the monarch to dismiss a Government except in the most extraordinary circumstances. But the monarch’s power is said to survive in case a Government should attempt to destroy the democratic or parliamentary bases of the British constitution. For example, if a Government insisted on remaining in office after having lost a vote of confidence in the House of Commons. The Royal Assent Royal Assent is the final stage necessary in order for a Bill to become a formal Act of Parliament and pass into law. The Queen has, in strict legal terms, the power to refuse to give Royal Assent to a Bill. However, in modern times it has become a convention that the monarch is bound to give assent to any Bill, except in extraordinary circumstances. The last time assent was given by the Crown in person was in 1854 and assent has not been refused since 1707, when Queen Anne refused to consent to the Scottish Militia Bill. Conferring appointments and honours Although the majority of Crown appointments and honours are made by the Queen on the advice of the Prime Minister, some remain within her personal gift. The Queen appoints members of her own Household. Appointments to the Orders of the Garter and of the Thistle, the Order of Merit and the Royal Victorian Order are also within her personal discretion.

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The executive prerogatives Although most of government today depends on powers granted by Acts of Parliament, there are still some residual areas where the Crown, as Her Majesty’s Government, derives its authority from common law, rather than statute. Ministers are responsible to Parliament for the exercise of prerogative powers, and may, with certain exceptions, be questioned about their exercise. The extent of the prerogative today The prerogative covers various areas and in some, where an antiquated power has not been used in modern times, the law is uncertain. But the main areas where prerogative powers are used in relation to today are:

(a) the legislature, eg to summon, prorogue and dissolve Parliament, to create peers, and to legislate by Order in Council; (b) the judicial system, eg to appoint judges and magistrates and to grant leave to appeal to the Judicial Committee of the Privy Council; (c) foreign affairs; (d) the armed forces; (e) appointments and honours; (f ) various privileges and immunities; (g) powers in defence of the realm; and (h) miscellaneous prerogatives, including the right to sturgeon, certain whales and swans, to treasure trove, and to mine precious metals. (i) formal declarations of war. The effect of statute on prerogative powers Parliament can, by express words, abolish or restrict the prerogative and may link this to a grant of statutory powers covering the same area. But sometimes Parliament creates a statutory scheme without expressly abolishing prerogative rights in the same area. In such a situation the Crown must abide by statutory restrictions on its power and cannot fall back on its original absolute prerogative. The leading authority on this is Attorney-General v De Keyser’s Royal Hotel (1920), where the Government took possession of a hotel in London in order to house army officers. Afterwards, the hotel owners sued the Crown for compensation, relying upon the Defence Act 1842. The Government argued that the hotel had been occupied under the prerogative power to take property for the defence of the realm, which imported no duty to pay compensation. The House of Lords held that the Government could not lawfully act on the

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prerogative power when there was a statute which authorised it to take the property and provided for compensation.

Essential Facts • The Government of the UK consists of the monarch, the Prime Minister, the Cabinet and other Ministers of the Crown. • The UK has a constitutional monarchy: that is to say it has a Government established under a system which acknowledges a hereditary monarch as Head of State, which is bound to follow the rules of the constitution. • The Queen is officially recognised as Head of State and plays a formal role in the work of Parliament, but her position can be seen as more ceremonial in form rather than executive. • Title to the throne is governed by the Act of Settlement 1700. The monarch must be a Protestant; Roman Catholics are disqualified, however, a recent change in the law no longer disqualifies those married to Roman Catholics. • There are three distinct sources of funding for the monarchy: the Sovereign Grant; the Privy Purse; and the monarch’s personal income. Only the Queen and the Duke of Edinburgh receive annual parliamentary allowances. All other allowances are now paid by the Queen from her personal income. • The duties of the monarch are varied and differ depending on whether she is acting in her capacity as Head of State or Head of Nation. • As Head of State, the Queen must undertake certain constitutional duties and many formal acts of government require her participation. Her role as Head of Nation is a less formal role but one which is more important in terms of social and cultural functions, including acting as a figurehead for national identity and unity, and carrying out charitable work. • The Royal Prerogative is derived from the residual common law powers of the monarch and dates back to an era when the monarch could do whatever he wished. It has been described by Dicey as “the residue of discretionary power which at any given time is legally left in the hands of the Crown”.

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• Today, however, the prerogative powers are normally exercised by Government Ministers in the name of the Queen. Such powers include declaring war, making treaties and pardoning criminals, although the Queen still exercises some prerogative powers including choosing a Prime Minister.

Essential Cases MacCormick v Lord Advocate (1953): the use of the title “ER II”, signifying “Queen Elizabeth II”, was challenged in Scotland as a contravention of the Treaty of Union, since there had never been a “Queen Elizabeth I” of Scotland. The Court of Session held that the numeral did not derive from the Royal Titles Act 1953 but from the proclamation at the Queen’s accession in 1952; that nothing in the Treaty of Union prohibited the adoption of the style; and that in any case MacCormick had neither title nor interest to sue. The Case of Proclamations (1611): limits of the exercise of the Royal Prerogative, subject to control by the courts.The King forbidding building construction in and around London, subject to penalty, was held to be unlawful by the courts. Attorney-General v De Keyser’s Royal Hotel (1920): concerned the effect of statute on prerogative powers. The Government took possession of a hotel in London, in order to house army officers. Afterwards, the hotel owners sued the Crown for compensation, relying upon the Defence Act 1842.The Government argued that the hotel had been occupied under the prerogative power to take property for the defence of the realm, which imported no duty to pay compensation. The House of Lords held that the Government could not lawfully act on the prerogative power when there was a statute which authorised it to take the property and provided for compensation.

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6 the united kingdom parliament The Parliament of the United Kingdom consists of three distinct elements:

• the monarch; • the House of Commons (an elected body); and • the House of Lords (an unelected body).

THE MONARCH In Chapter 5, we have already examined the important role played by the monarch in relation to Parliament. By convention, the Queen must give Royal Assent to Bills which have been passed by the House of Commons and the House of Lords to enable them to become Acts of the Queen in Parliament. The Queen also summons Parliament after each General Election and dissolves it at the end of its term. THE HOUSE OF COMMONS The House of Commons currently consists of 650 men and women known as Members of Parliament or MPs.This number was to be reduced to 600 at the 2015 general election, by the Parliamentary Voting and Constituencies Act 2011, but the reduction in the number of MPs has been put on hold in the meantime. They are chosen by a method known as the relative majority or “first past the post” (FPTP) system whereby the candidate who receives the most votes in a parliamentary constituency will be elected to Parliament. There are many criticisms of this method of election, chiefly that it leads to a Parliament which does not necessarily reflect the political choices of the majority of voters who choose losing candidates. Even if the runner-up candidate in a constituency has lost by a handful of votes, he does not receive any right to sit in Parliament. Consequently, a number of calls have been made to replace the current system with one which is more proportionate. There are a number of alternatives, including the Additional Member System (AMS), used by the Scottish Parliament, which seeks to achieve a closer link between the number of votes cast for each candidate and the number of seats won. In 2011 a referendum was held throughout the UK, under the

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Parliamentary Voting and Constituencies Act 2011 on the question of replacing the first past the post system with a system known as the Alternative Vote. However, this was decisively rejected and FPTP is likely to remain for the foreseeable future. The FPTP system generally favours the 2 main political parties in the UK, Labour and Conservative, by resulting in a majority for one or other party, thus allowing their members to form a government. However, the general election in 2010 did not produce a majority for any party and the government was formed as a result of a coalition between the Conservatives and the Liberal Democrats. Until recently, General Elections were held every 4 or 5 years reflecting the maximum life of a Parliament set by the Parliament Act 1911, with the date being decided by the Prime Minister. However the law was changed in 2011 by the Fixed- Term Parliaments Act to give Parliament a fixed term of 5 years in normal circumstances. However, there is provision for an earlier general election to be held if two thirds of MPs vote for dissolution; or if the government loses a vote of no confidence in the House of Commons. The right to vote Citizens entitled to vote must be UK residents aged 18 or over who are: • British citizens; • Commonwealth citizens; • citizens of the Irish Republic; and • registered in the register of parliamentary elections. The following groups of people are not allowed to vote in elections to the UK Parliament, either under pre-existing law or under the Representation of the People Act 1983 (as amended):

• aliens (people who are not British, Commonwealth or Irish citizens); • minors (those aged under 18); • members of the House of Lords; • offenders detained in a mental hospital; • convicted prisoners while detained in a penal institution or unlawfully at large having escaped from confinement; • undischarged bankrupts; and • persons guilty of specific electoral offences.

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Disqualification from membership The Parliamentary Elections Act 1695 states that no person under the age of 21 shall be eligible for election to Parliament. However the minimum age for standing for election was reduced to 18 by the Electoral Administration Act 2006. Until 2013 persons suffering from mental illness were disqualified from voting but this was removed by the Mental Health (Discrimination) (No. 2) Act 2013. There are a number of other important disqualifications, most of which are embodied in statute (see, generally, the House of Commons Disqualification Act 1975):

• aliens; • members of the House of Lords; • undischarged bankrupts; • persons guilty of particular electoral offences; • persons sentenced to a term of imprisonment exceeding 1 year; • persons guilty of treason; • members of foreign legislatures outside the Commonwealth (excluding the European Parliament and Ireland); and • holders of certain public offices, such as judges and police officers.

Previously, clergy who had been episcopally ordained, ie by a bishop, were disqualified from membership. This applied to clergy of the Church of England and Church of Ireland, and ministers of the Church of Scotland, under the terms of  s 1 of the House of Commons (Clergy Disqualification) Act 1801; and to Roman Catholic priests through s 9 of the Roman Catholic Relief Act 1829. However, the House of Commons (Removal of Clergy Disqualifications) Act 2001 has now altered the law in this area. Under s 1, a person is not disqualified from being or being elected as a member of the House of Commons merely because he has been ordained or is a minister of any religious denomination. All of the pre-existing legislation has been repealed. Functions Representative A very important part of an MP’s job is representing his or her constituents and taking up issues on their behalf. Most MPs hold surgeries in their constituencies to enable them to keep in touch with the people who elected them. An important point is that an MP is not a delegate, bound

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by the views of his constituents, rather a representative who takes account of their views, but who, at the end of the day, exercises his own judgement. Forming Governments In the two-party Westminster system, the majority party provides, mostly from the House of Commons, the members of the UK Cabinet, the Ministers of the Crown, Parliamentary Under Secretaries and unpaid Parliamentary Private Secretaries. The main Opposition party in the UK Parliament is intended to be a Government in waiting. It has a Shadow Cabinet and various other MPs as opposition spokespersons. Organising support within the House of Commons is the job of the Whips. By means of persuasion, political bribery or threats, the Whips organise MPs’ support for their respective party groups. Where no Party wins an outright majority of seats, it is possible for a minority government to be formed as in 1974, 1977 and 1996 or for a coalition to be formed as in 2010 between the Conservative and Liberal Democrat Parties. The coalition parties have a majority of seats in Parliament and the various Ministerial positions are allocated among members of the coalition parties. Legislative Parliamentary legislation is mainly initiated by the Government and tends to introduce changes to society which reflect the policies of a particular Government. Proposals for an Act of Parliament take the form of a Bill and, during the opening ceremony of Parliament, the Queen will generally outline the forthcoming Government Bills for the year ahead. Bills themselves fall into three distinct categories. Public Bills are the most important and take up the majority of parliamentary time since they deal with matters of important principle and generally affect society as a whole. There are two types of Public Bill: Government Bills and Private Members’ Bills. Government Bills are introduced by the ruling Government of the day and generally reflect current policy or manifesto commitments or coalition agreements. For example, the Constitutional Reform Act 2005 was introduced as a Government Bill reflecting the Labour Government’s enthusiasm for judicial reform. The majority of Acts passed by Parliament originate from Government Bills. Private Members’ Bills, on the other hand, generally originate from an individual MP. These Bills will more often than not deal with an area which does not receive Government backing or is controversial, and they often reflect personally held beliefs of MPs. In some cases, controversial measures for which a Government does not want to take responsibility

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may be introduced by back-benchers, with the Government secretly or openly backing the measure and ensuring its passage. Such Bills are sometimes known as “Government handout Bills”. The Abortion Act 1967 was passed in such a manner. A Private Member’s Bill ensures that back-benchers have more input into the legislative process of Parliament but the success of such Bills is very limited. Most Private Members’ Bills fail to become Acts due to lack of parliamentary time. The second category of Bill is the Private Bill. These contain proposals which generally affect the interests of specified persons or localities. They are introduced through petition by the persons or organisations who desire the Bill. Private Bills are commonly introduced by local authorities or public corporations and seek to give statutory powers to those bodies which they would otherwise not have. For example, the City of London Bill is currently before Parliament and seeks to give the City of London Corporation various increased powers. Private Bills follow a slightly different procedure in their enactment from other Bills and there is often very little discussion of such Bills within Parliament. The third and final category of Bill is the Hybrid Bill. These are usually Government Bills which also specifically affect particular individuals or groups. They are therefore treated in many ways like Private Bills. An example of such a Bill can be found in the Channel Tunnel Bill of 1986, now the Channel Tunnel Act 1987. The Bill was generally Public in nature, given that it set out to create the Channel Tunnel, however, certain sections of the Act gave the Government powers of compulsory purchase to buy areas of land in Kent required to build the Tunnel. Since these sections specifically affected only Kent landowners, the Bill was Hybrid in nature. The High Speed Rail (London–West Midlands) Bill, currently before Parliament, is another example. Parliamentary stages of Bills Bills may be introduced in either the House of Commons or the House of Lords. However, there are certain Bills which must always originate in the Commons, such as Money Bills and Bills of constitutional importance. A Bill which originates in the House of Lords will progress through the same stages as those in the House of Commons. The stages of a Bill as it passes through Parliament are as follows: • First Reading

The first stage consists of a number of formalities where the Bill is

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announced and its short title is read out. A date is set for the Second Reading of the Bill and after that the Bill is printed and distributed. • Second Reading

At this stage, the House will debate the general principles contained in the Bill. At the end of the debate, the motion is put to a vote. It is very rare for a Government Bill to lose a vote, although it is not unheard of. For example, the Shops Bill 1986 was lost at the Second Reading.

• Committee Stage

During the Committee Stage, most Bills are passed over to a Public Bill Committee which is created for the specific purpose of dealing with the Bill. Public Bill Committees generally consist of between 16 and 20 MPs and reflect the state of the parties represented in the House of Commons. At this stage, the Bill is subjected to what is supposed to be a thorough line-by-line examination and any of its clauses may be amended where necessary. However, most Government Bills have a Programme Motion which sets out the timetable or “guillotine” for the Bill after the Second Reading. As a result of the guillotine some clauses may receive no scrutiny by the Committee. Evidence may be taken from experts and interest groups   A small number of Bills at this stage are passed over to a Committee of the Whole House as opposed to a Public Bill Committee. During such a Committee, each clause of the Bill is debated on the floor of the House of Commons by all MPs. Such a Committee is used for Bills of constitutional significance, such as the Scotland Bill during 1998. It is also used to pass Bills which require a rapid enactment, such as the annual Finance Bill. • Report Stage

If a Bill has come from a Committee of the Whole House, then this stage is purely a formality. However, for the majority of Bills, the report stage will involve a review of any amendments made during the Committee Stage.All members of the House have an opportunity to debate at this stage, making it rather more democratic than the Committee stage where the scope for debate is rather limited. Further amendments may be made and voted on.

• Third Reading Here, the House examines the final version of the Bill. The Bill is

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debated in principle and a vote taken. This stage is usually very brief, since no further amendments may be made. A key problem with the legislative process of the Commons is the amount of time it takes. The more amendments a Bill receives, the longer it will take to pass through Parliament. Consequently, many Bills are subject to what is called a “guillotine” motion. Such a motion will quickly bring the debate on a Bill to an end, allowing it to proceed more quickly. Since 1999, the Commons has also used a new procedure known as the “Programme” Motion. Using this motion, a programme or timetable is put before the House, agreeing the amount of time allocated to stages of a Bill and dates for progression. • Lords Stages Once the Commons stages have been completed, the Bill is sent to the House of Lords where the whole procedure is repeated.The Lords Stages are similar in many ways to those of the Commons, except for a few key differences.There is, by practice, no vote at Second Reading if it is a Government Bill. The Committee Stage in the Lords always consists of a Committee of the Whole House and there is no use of guillotine or programme motions, which allows for unrestricted debate on the clauses of a Bill. It is also possible to table amendments during the Third Reading in the Lords.   Changes made to a Bill in the House of Lords result in an extra stage in the Commons, known as the Consideration of Lords Amendments. This is necessary in order to approve any amendments made by the Lords. Occasionally, the two Houses will not agree on a Bill. In such circumstances, the Lords can exercise its delaying power and refuse to accept the proposals of the House of Commons, (the so-called “ping-pong” process). However, this delaying power is limited by the Parliament Act 1911, as amended by the Parliament Act 1949 which states that the Lords can delay a Bill only for up to 1 year. Using the Parliament Acts, the House of Commons can then submit a Bill for Royal Assent without the consent of the House of Lords. Examples of Acts passed in this way are the War Crimes Act 1991 and the Hunting Act 2004.Thus, the power of the House of Lords to block legislation permanently is curtailed. Unless the House of Commons invokes the Parliament Acts, then both Houses of Parliament must always agree in order for the Bill to progress. • Royal Assent This is the final stage of a Bill, where the Crown must formally assent

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to the Bill in order for it to become an Act of Parliament and pass into law. In modern times this has become something of a formality since the UK is a constitutional monarchy and the sovereign is bound to assent to any Bill, except in extraordinary circumstances. The last time assent was given by the Crown in person was in 1854 and assent has not been refused since 1707, when Queen Anne refused to consent to the Scottish Militia Bill (on the advice of her Ministers). Scrutiny of the executive The Government’s responsibility to Parliament for its actions is promoted and enforced by way of a number of procedural and legal mechanisms. These primarily take the form of debates, questions, committees and the Parliamentary and Health Service Ombudsman. The role of the Parliamentary Commissioner in holding government to account for its actions is discussed fully in Chapter 11. Debates There are many opportunities for debate within the House, the main ones being: • Address in reply to the Queen’s Speech An address in answer is moved in both Houses of Parliament. It is moved and seconded by two members of the majority party, in the form of a resolution expressing thanks to the Sovereign for her most gracious speech. Amendments are moved thereto. The debate may last several days and covers the whole range of government policy, especially in relation to the Queen’s Speech. • Opposition Day debates Standing Order 14 of the House of Commons Standing Orders provides that on 20 days in each session, proceedings on business chosen by the Opposition parties shall have precedence over Government business. Seventeen of the days are allocated to the disposal of the Leader of the Opposition. The remaining three days are at the disposal of the second-largest party of Opposition. Two of the seventeen and one of the three days can be taken as half-days (not on a Friday) to allow the Opposition the opportunity of raising urgent matters at short notice. • Backbench Debates Backbench debates were introduced after the 2010 general election. Several days are allocated in each parliamentary year when the subject matter of debates is determined by the Backbench Business

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Committee. The Committee can consider any subject for debate. They include subjects raised in national or local campaigns, reports by Select Committees and other groups, issues suggested by constituents and issues raised in e-petitions or traditional paper petitions. • Adjournment debates At the conclusion of public business each day, a member may move an adjournment debate. Members must put their names down in advance, with ballots being held for the adjournment debates on Monday, Tuesday, Wednesday and Friday. The subject for Thursday is selected by the Speaker of the House. Adjournment debates are unlikely to make any significant impact, since Ministers are given adequate notice, thus allowing them to prepare their responses. • Emergency debates Members have an opportunity to move the adjournment of the House for discussion of a specific matter requiring urgent consideration. The member must inform the Speaker of his intention and the permissions of the House must be given. The motion usually stands over until the commencement of public business the next day or, if sufficiently urgent, until 7 pm on that day. Questions (oral and written) Oral parliamentary questions are raised during every sitting day, except Friday. Such questions are popular and around 50,000 are set down for every parliamentary session. There are a number of key reasons for asking parliamentary questions:

(1) to raise constituency matters (though this is normally done by letter to a Minister); (2) to extract information – for example,“How many Acts of Parliament have been passed since 1999 utilising a Sewell Motion?”; (3) to advocate a cause; (4) to embarrass the Government or a Minister; and (5) to offer a Minister the chance to make a policy statement.

Generally, written answers given are in response to prior written questions. A written answer is normally given within one working week and printed in the Official Report (Hansard). However, an MP may raise supplementary oral questions based upon a Minister’s reply, for which no formal notice is required. This provides a good opportunity to place Ministers on the spot

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regarding key issues. Some Departments also have a specific spot for topical questions which have not been notified in advance. It is central to the rules governing parliamentary questions that questions should relate to matters for which Ministers are responsible. In July 1999, following the establishment of the Scottish Parliament and the National Assembly for Wales, various matters became the responsibility of Ministers answerable to those bodies. The Commons Procedure Committee recommended that the rules on questions should be revised to take account of devolution, and on 25 October 1999 the House approved a motion on this subject. The effect of the resolution is that, in general, parliamentary questions may not be tabled at Westminster on matters that have been devolved to Scotland and Wales. House of Commons Committees Not all of an MP’s time is spent in the debating chamber. Much of the work of the House of Commons is carried on through parliamentary committees which include Select Committees, Public Bill and General Committees, and other specialised committees such as the Ecclesiastical Committee. Each provides powerful opportunities for scrutinising the work of the executive. Select Committees Generally speaking, Select Committees play the most important role in scrutinising the executive, and they frequently influence and modify aspects of policy. Such committees were originally ad hoc, ie set up to investigate a particular issue; however, some took on a quasi-permanent nature and were re-appointed in consecutive sessions, such as the Public Accounts Committee. From 1967 onwards, a limited number of specialist Select Committees were set up, in an attempt to improve the efficiency of the House in scrutinising the conduct of the administration. It began with the Committee on Agriculture and the Committee on Science and Technology; followed by Scottish Affairs, Race Relations, Immigration and Overseas Development. These committees were able to build up a body of specialist knowledge and increase the effectiveness of their scrutiny of the executive. In 1978, the Select Committee on Procedure recommended a reorganisation of the structure to provide scrutiny on “a continuing and systematic basis”. This was to be achieved by basing each committee on a government department, instead of on specific subjects. Thus, the modern system of departmental Select Committees was established in June 1979. They are charged with examining all aspects of expenditure, administration and policy and are appointed for the lifetime of each Parliament, not just a

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session. For a list of the current committees, see http://www.parliament. uk/parliamentary_committees/parliamentary_committees16.cfm. Select Committees have a minimum of 11 members who reflect the party balance in the House of Commons. They decide upon the line of inquiry and then gather written and oral evidence. Findings are reported to the Commons, printed and published on the Parliament website. The Government then usually has 60 days to reply to the committee’s recommendations. Overall, these committees provide a forum in which Ministers, civil servants and others can be cross-examined at length and thoroughly. They usually produce unanimous reports which cross party lines and present powerful all-party criticism of the Government. Unfortunately, however, the House of Commons rarely finds time for substantive debate of the reports. Joint Committees Joint Committees operate in a similar fashion to Select Committees; however, they consist of equal numbers of members of the House of Commons and House of Lords. They are appointed at the insistence of one House or the other, on an ad hoc basis. However, three Joint Committees meet on a regular basis: Human Rights, which meets to consider UK human rights issues; and Statutory Instruments, which scrutinises delegated legislation and the National Security Strategy Committee. Mention should also be made here of Parliamentary Commissions such as the Parliamentary Commission on Banking Standards. Members of these bodies are drawn from both the House of Commons and the House of Lords and they scrutinise the executive in much the same way as Select Committees do.

THE HOUSE OF LORDS The United Kingdom has a bicameral legislature, ie one consisting of two Houses (the House of Commons and the House of Lords). The House of Lords is known as the “Upper House” of the UK Parliament, in reference to its historical position which was one of superior political power. This power has gradually been eroded and the main role of the Lords today is to act as a second chamber for revising legislation, and to complement the work of the House of Commons. The House of Lords was, until recently, also the highest court of appeal in the UK, but this function was moved to the new Supreme Court of the United Kingdom in 2009 by virtue of the Constitutional Reform Act 2005.

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Composition Until 1999, the House of Lords had 1,330 members, the majority of whom were hereditary peers who had inherited their peerages. Under the House of Lords Act 1999, most of the hereditary peers lost their right to sit in the House of Lords. The current membership (as of July 2015) of the House is around 800. They fall into a number of distinct groupings:

(1) the Lords Spiritual; (2) hereditary peers; (3) life peers.

The Lords Spiritual The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and Winchester, and the 21 senior diocesan bishops of the Church of England have seats in the House. Only the Church of England is represented officially, even though the Church of Scotland is an established Church too. This is because the Church of England is the “established” Church of the State. When a Lord Spiritual retires as a bishop, his membership of the House ceases. Hereditary peers Hereditary peers were historically the least legitimate element of the House of Lords, since their peerages were simply inherited. Many campaigners queried the right of such individuals to sit and vote in Parliament by virtue of birth and in 1999 the Government finally decided to abolish hereditary peers from the second chamber. Until the passing of the House of Lords Act 1999 there had been around 700 hereditary members; however, there are now only 92. They are the result of an amendment which was made to the House of Lords Bill, enabling the exemption of 92 existing hereditary peers or those who have been elected as a result of a by-election amongst the hereditary group, following the death of a hereditary peer. By 2015, the number had fallen to 87. These peers will remain as members until the next stage of reform and are made up as follows:

• 15 “office-holders”, ie Deputy Speakers and Deputy Chairmen, elected by the House; • 75 party and cross-bench members elected by their own party or group; and • two who hold royal appointments: the Lord Great Chamberlain, who is the Queen’s representative in Parliament; and the Earl Marshal, who is responsible for ceremonies such as the State Opening of Parliament.

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Life peers The Life Peerages Act 1958 enables the Sovereign to confer a barony for life, carrying the right to sit in the House of Lords. This Act allowed for the creation of women peers (peeresses) for the first time and was quite contentious at the time. In 2015 there were 199 woman peers in the House of Lords. There is no limit to the number and life peers currently make up the majority (about 700) of the total membership of the House. Although the power to appoint belongs formally to the Crown, members are essentially created on the advice of the Prime Minister. They play a very significant part in the work of the House of Lords and serve to secure the experience and wisdom of citizens from all walks of life. Once a year or so, a list of new working peers is drawn up by the Prime Minister after consultation with the leaders of the Opposition parties. The House of Lords Appointments Commission The House of Lords Appointments Commission is an independent body established in 2000. There are seven members, the Chair, three members of the House of Lords representing the three main political parties and three others who are independent of the government and non-political. The Commission recommends individuals for appointment as nonparty-­political life peers. It also vets nominations for life peers, including those nominated by the political parties, to ensure the highest standards of propriety. Members can also be nominated by members of the public. Once approved by the Prime Minister, the Queen formally makes the appointments. The Lords of Appeal in Ordinary In the middle of the 19th century, attention was drawn to the fact that there was a dearth of qualified lawyers in the House of Lords. This was particularly unfortunate since the House of Lords was the highest court of appeal in the UK (subject to reform when the provisions of the Constitutional Reform Act 2005 came fully into force in 2009). This situation led to the passing of the Appellate Jurisdiction Act 1876 under which two Lords of Appeal in Ordinary were introduced. The number gradually rose to allow up to 12 Law Lords to be appointed to hear appeals from the lower courts. They were salaried senior judges and could continue to hear appeals until they were 70 years old. After they retired, they went on sitting in the House. However, the judicial function of the House of Lords ended in October 2009 when the new Supreme Court of the United Kingdom was set up under the Constitutional Reform Act 2005. As a result, the Law Lords lost their right to sit in the House of Lords.

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Functions The House of Lords has a number of key functions:

• it provides a forum for debate on issues of public interest; • it acts as the revising chamber for Bills introduced in the House of Commons; • it can initiate Public Bills, generally less controversial ones, and Private Members’ Bills; • it scrutinises subordinate legislation and private legislation; • it scrutinises European Union proposals; • it scrutinises the activities of the executive.

Unlike members of the House of Commons who receive a salary (c.£75,000 in 2015), most members of the House of Lords do not receive a salary for their parliamentary duties. However they are eligible to receive allowances and, within certain limits, the travel expenses they incur in fulfilling their parliamentary duties. They may claim a flat rate attendance allowance of up to £300 for each sitting day they attend the House. This daily allowance replaces the separate overnight subsistence, day subsistence and office costs in the previous system. Entitlement is determined by attendance, not residence criteria. Some members hold a ministerial post or an office such as Deputy Speaker and these members are paid a salary and are not entitled to claim the allowances based on attendance. Members’ expenses amount to about 15% of the annual running costs of the House of Lords of around £80 million. Powers Up until 1911, the Lords and the Commons had the same legislative powers, except in money matters. By convention, Bills dealing with taxation or public expenditure had to be introduced in the House of Commons as the elected body and could not be amended by the House of Lords, although the Lords had the formal right to reject them completely. The convention was that where the will of the people was behind the House of Commons, the Lords should give way. Between 1906 and 1909, the Lords rejected several important measures proposed by the Liberal Government, including, in 1909, the Government’s Finance Bill. This led to the Lords’ power of veto being reduced to one of delay for a period of 2 years under the Parliament Act 1911. This was further reduced to 1 year by the Parliament Act 1949 which arose from a disagreement between the

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House of Lords and the Labour Government over nationalisation of coal and steel. The effect of the Parliament Acts means that certain Acts of Parliament can be passed without the consent of the House of Lords. The 1949 Act itself was passed under the provisions of the 1911 Act, ie without the consent of the House of Lords. Very few Bills have been enacted in this way, since most differences are usually resolved by compromise. However, recent examples passed using the procedure include the European Parliamentary Elections Act 1999 and the Hunting Act 2004. Some constitutional academics were of the opinion that the 1949 Act is not a proper Act of Parliament, but a special kind of delegated or subordinate legislation and so Acts passed using the 1949 procedure could be challenged as to their validity. However, this argument now appears to have been discredited by the decision in Jackson v Attorney-General (2005). The procedures of the Parliament Acts do not apply to Private Bills, subordinate legislation or Bills which start in the House of Lords. Reform of composition? The House of Lords Act 1999 was intended to be “stage one” of a series of reforms aimed at making the upper chamber more democratic. The Labour Government which was elected in 1997 had a commitment to reform the House of Lords, principally through the removal of hereditary peers, prior to a second stage of reform. In early 1999, the Government published a White Paper on House of Lords reform, entitled Modernising Parliament, Reforming the House of Lords (Cm 4183, 1999) and established a Royal Commission chaired by former Conservative Cabinet Minister Lord Wakeham (the Wakeham Commission) to produce a proposal for a wholly reconstituted second chamber. The Wakeham Commission The Royal Commission reported in January 2000. Entitled A House for the Future (Cm 4534), the report was far-reaching in its proposals and provided a blueprint for a wholly reconstituted second chamber. Among its key recommendations were that an appointments system should be set up. This would be governed by a body known as the Appointments Commission. It would be independent of the Prime Minister, the Government and the political parties and would be responsible for all appointments to the second chamber. The Commission would have a number of duties which would include ensuring gender balance, appointing a significant number of regional members and the maintenance of a political balance. The

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Wakeham Commission also suggested that the existing life peers, who were created before the publication of the Commission’s findings, should be deemed to have been appointed to the reformed second chamber for life. However, any life peers created between publication and the enactment of any legislation necessary to implement the second stage of Lords reforms should be deemed to have been appointed to the reformed second chamber for a period of only 15 years from the award of their life peerages. Events since Wakeham In May 2000, the Government established an independent non-statutory Appointments Commission with a number of key functions:

• to recommend people for appointment as non-party-political life peers; • to vet all nominations for membership of the House of Lords, including those nominated by the political parties; and • to scrutinise certain candidates added to the Honours lists.

However, from this point on, major reform of the House of Lords has remained unfinished business despite the 2005 manifestos of the three main parties being committed to further reform. The lack of progress has been rooted in the fact that Parliament has been unable to agree on a specific template for the new second chamber. Despite widespread party commitment for change, there are strongly held and conflicting views on particular aspects of reform. An area of particular contention has been the question as to how people should become members of the House, by election, appointment or by a mixture of both. Many MPs advocate a wholly elected second chamber to add democratric legitimacy, while opponents prefer only a partially elected House. In an attempt to move forward, a “Breaking the Deadlock” group was formed in 2005 and a Cross-Party Working Group on Lords Reform in 2006. The work of these groups culminated in the issuing of a White Paper entitled The House of Lords: Reform (2007). In the Government’s view, it was difficult, in a modern democracy, to justify a second chamber where there is no elected element. The White Paper therefore proposed that a reformed House should be a hybrid House, ie partially appointed and elected. Opinions as to the balance between the elected and appointed members have, however, varied. The White Paper suggested a model whereby 50 per cent of the House would be elected through a partially open list system, with elections being held at the same time as elections

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to the European Parliament and using the same constituencies. The appointed element of the House would continue through a new Statutory Appointments Commission. However, the Labour Government was unable to proceed with proposals for reform partly because it was engulfed by the financial crisis of 2008 and later because of lack of parliamentary time and cross-party agreement. The coalition government formed in 2010 was committed to reform of the House of Lords as part of the coalition agreement. and a introduced detailed proposals for House of Lords reform including a draft House of Lords Reform Bill published in May 2011. These included a 300-member hybrid house, of which 80% were to be elected. A further 20% would be appointed, and reserved space would be included for some Church of England bishops. Under the proposals, members would serve single nonrenewable terms of 15 years. Former MPs would be allowed to stand for election to the Upper House, but members of the Upper House would not immediately be allowed to become MPs. Many of the details of the proposal were incorporated into the House of Lords Reform Bill which was introduced to the Commons in June 2012. However, as the Bill proceeded, there was a significant rebellion by over a hundred Conservative MPs and it became clear that the proposals would be defeated. The Bill was therefore withdrawn in September 2012. Reform of the House of Lords has been on the political agenda for over one hundred years. The preamble to the Parliament Act 1911 contains the following statement: “it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation …” Yet the unelected House of Lords clings on to its existence. It remains to be seen whether the government elected in 2015 will have any more success than its many predecessors. Minor Reforms The House of Lords Reform Act 2014 was introduced as a Private Member’s Bill. It provides for:

• The retiral or resignation of members; • The removal of members for non-attendance during a parliamentary session, without leave of absence;

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• The removal of members on conviction of a serious offence and imprisoned for more than one year.

The provisions of the Act are not retrospective and thus do not affect members who have not been in attendance or who have been imprisoned for more than a year in the past. Several Lords, including Lord Archer and Lord Watson, were imprisoned for offences before these Acts were on the statute book but did not lose their seats in the House of Lords and could not be forced to resign The House of Lords (Expulsion and Suspension) Act 2015 gave the House of Lords a new power to expel members and to suspend members for any length of time. This Act which came into force in June 2015, might have been used in the case of Lord Sewel, a Scottish Life Peer of whom it was alleged in the press in July of that year that he had been filmed taking cocaine in the company of prostitutes. However, he decided to resign on 28 July 2015 so the first expulsion under the new Act was avoided. Abolition? Although some academics have argued for abolition of the House of Lords, it is doubtful whether a policy of outright abolition would take adequate account of the special dangers that that could pose in the uncodified British constitution. With a unicameral legislature and no entrenched procedures for constitutional change, it would be legally possible for extreme changes to be brought about by one vote. The implications of abolition would be far-reaching, given the vagaries of our present electoral system which usually produces a Government with a significant majority. PARLIAMENTARY PRIVILEGE Parliamentary privilege is part of the law and custom of Parliament and refers to the freedom of each House to conduct its proceedings without interference from the Crown, courts, external bodies or the public. It consists of special rules evolved by the two Houses to protect themselves collectively, and their members individually, while acting in their public capacity. Their existence and validity are recognised by the courts but in general they are not enforced by the courts but by each House. The key privileges relate to:

• freedom of speech and debate; • freedom from arrest (on civil matters); • freedom of access to the sovereign;

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• the right to regulate composition; • the right to regulate proceedings; and • the right to punish for breach of privilege or for contempt.

In 2012 the Government issued a Green Paper on Parliamentary Privilege (Cm. 8318) which is a consultation paper on reforming and modernising the rules on parliamentary privilege.The Joint Committee on Parliamentary Privilege reported in 2013 and recommended that there was no strong case for legislation to codify parliamentary privilege. The Government’s response (Cmnd. 8771) was in agreement that there was no need for codification but that steps could be taken to clarify the application of privilege where appropriate. Freedom of speech and debate Article 9 of the Bill of Rights 1688 states that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Originally, this was aimed at protecting members from the king if they criticised him. Today, however, it has a very different significance, namely to protect members from actions of damages for statements made in Parliament. The effect in law is that no criminal or civil action can be brought against a member for words used in Parliament, no matter how defamatory or untrue they are. Furthermore, a member cannot be threatened with prosecution for sedition or breach of the Official Secrets Acts. In Duncan Sandys’ Case (1938), Sandys complained that he had been threatened with prosecution for refusing to divulge his sources of information obtained in breach of the Official Secrets Act in connection with a parliamentary question he had tabled about a shortage of anti-aircraft material. The law of privilege protected Sandys from prosecution. There are certain things which cannot be said in the House, such as “liar”, but it is Parliament itself, not the courts, which has the power to discipline MPs. Not only can no action of defamation be brought in respect of anything said in the House, neither can what has been said there be examined in court for the purpose of deciding whether the statement supports an action in defamation which has arisen outside Parliament. In Church of Scientology of California v Johnson-Smith (1972), Johnson-Smith, MP was alleged to have published a libel during a TV interview about the Church. He had previously asked a question of the Minister of Health in the House of Commons, which resulted in alien scientologists being refused admission to the UK. The Church

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sought to rebut Johnson-Smith’s plea of fair comment by referring to proceedings in Parliament, recorded in Hansard. The High Court held that parliamentary privilege meant that they could not examine these proceedings in court. This does not mean, however, that no reference at all can be made to parliamentary proceedings in court. In Pepper v Hart (1993), it was argued that the use of Hansard for the purpose of statutory interpretation would constitute a questioning of the freedom of speech or debate, contrary to Art 9 of the Bill of Rights 1688. The House of Lords disagreed and stated that, far from questioning the independence of Parliament and its debates, the use by courts of clear ministerial statements as a guide to construction of ambiguous legislation would help to give effect to what is said and done in Parliament. There is one important qualification in this area, namely that parliamentary privilege only extends to statements made during proceedings in Parliament. Thus, the courts may intervene if a member defames someone outside Parliament. This has led to difficulties due to the imprecise meaning of “proceedings” in Parliament. It has been said to extend to asking parliamentary questions, to everything said or done by a member in the exercise of functions in committees, and to conversations between MPs and Ministers in a Minister’s office. A particular problem which has arisen is the question of whether a letter from an MP to a Minister is a proceeding in Parliament. In Re Parliamentary Privilege Act 1770 (1958), George Strauss, MP wrote to a Minister, complaining about certain activities of an area electricity board. The board threatened to sue Strauss for libel. Strauss raised the matter in the House and it was referred to the Committee of Privileges which held that writing the letter was a proceeding in Parliament and that the board was in breach of parliamentary privilege. The House debated the committee’s report and, on a free vote, rejected the committee’s finding that it was a proceeding in Parliament. Thus, the protection afforded is not total. However, the Speaker later indicated that parliamentary privilege would extend to a letter written by an MP to a Minister in response to an invitation to do so made during a parliamentary debate or in response to a question. Following the decision in Stockdale v Hansard (1839), the Parliamentary Papers Act 1840 was passed which confers absolute privilege on statements in parliamentary papers. Qualified privilege applies to publications of fair and accurate reports of parliamentary papers.

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Freedom from arrest This was enjoyed by the MPs of both the Scottish and English Parliaments to protect them from the king. The privilege is of little importance now, and in 1967 the Committee on Parliamentary Privilege recommended its abolition. The privilege lasts for a session of Parliament and for 40 days before and after it. It does not protect members from arrest on criminal charges. A warrant for the arrest of Ron Brown, MP was issued in 1988, for criminal damage to the Commons’ mace. He was found guilty of criminal damage. The privilege does protect from civil arrest (although this is very rare now). In Stourton v Stourton (1963), Stourton, a peer, failed to comply with a court order regarding maintenance for his wife. He pleaded freedom from arrest under parliamentary privilege. The court concluded that parliamentary privilege existed in relation to the civil law and so Stourton was protected. Right to regulate composition This area is now partly regulated by statute and the privilege covers:

• • • •

filling casual vacancies; determining disputed elections; determining legal disqualifications; and expulsion of members unfit to serve.

Right to regulate proceedings This rule is closely linked with the rule that proceedings in Parliament cannot be called into question in any court. The privilege is quite strictly followed and is the reason why the courts will not question the procedural validity of an Act of Parliament (Pickin v British Railways Board (1974)). Similarly, in Bradlaugh v Gossett (1884), Bradlaugh, a militant atheist, refused to take the oath of allegiance on being elected as an MP. Eventually, the House of Commons reluctantly allowed him to affirm his allegiance. However, an action was brought against him on the grounds that he had sat and voted without taking the oath, and that he did not come within the classes of persons entitled to affirm, and so his seat was declared vacant. Bradlaugh was subsequently re-elected and the House of Commons sought to exclude him. Bradlaugh raised an action seeking an injunction to prevent the Serjeant-at-Arms (Gossett) from excluding him. The court held that it had no jurisdiction to intervene. The House was not subject to control by the courts in its administration of internal proceedings.

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Theft, rape, murder or other serious crimes are issues to be left to the criminal courts. The penal powers of the House are not adequate to deal with crimes. If two members assault each other in the House, both the House and the courts have concurrent jurisdiction. However, in 1972, when Bernadette Devlin, MP assaulted the Home Secretary, Reginald Maudling, pulled his hair and knocked his spectacles off, no proceedings were taken against her, either inside or outside the House. When in doubt, the courts tread warily, for fear of encroaching on the House’s privileges. In R v Graham-Campbell, ex parte Herbert (1935), Herbert wanted to liberalise licensing laws. He tried to embarrass the House of Commons’ Kitchen Committee members by applying for a summons against them for selling alcohol in the House of Commons bar without a licence. The Divisional Court upheld the decision of the Chief Magistrate to refuse to issue a summons because of parliamentary privilege. Additionally, licensing laws do not bind the Crown, and the House of Commons is part of the Royal Palace of Westminster. In a case involving relating to the “expenses scandal” of 2009, three MPs and a Member of the House of Lords claimed that parliamentary privilege protected them from prosecution for false accounting. The case reached the Supreme Court and was heard by a bench of 9 judges to reflect the significance of the issue. R v.Chaytor and Others [2010] UKSC 52. The judges unanimously rejected the submission that parliamentary privilege under either the common law or the Bill of Rights 1689 protected the defendants from prosecution. All four were subsequently found guilty and sent to prison. Right to punish for breach of privilege or for contempt All breaches of privilege are contempts, but a wide range of contempts fall outside the scope of any named privilege. Examples of contempts include: offering bribes to members; molesting or obstructing members or officers of the Houses; insulting the House or its members; attempting to disrupt proceedings; refusing to give evidence to a committee; and intimidation of members. Punishments (i) Expulsion: leads to a vacancy, but the House cannot prevent reelection. Garry Allighan, MP was expelled in 1947, for lying to a committee and for gross contempt of the House after publication of an article in the World’s Press News accusing Members of insobriety and of taking fees or bribes for the supply of information.

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(ii) Suspension for a temporary period: in 1995, the Conservative MPs Graham Riddick and David Tredinnick were formally reprimanded and suspended without pay by the House of Commons for 10 and 20 sitting days respectively, for taking £1,000 to ask questions in the House of Commons (see HC Debates, vol 258, no 59, cols 350 et seq). (iii) Imprisonment of a member; imprisonment of a stranger in Her Majesty’s Prison: this has not been used since the 1880s, and the Committee of Privileges has recommended that this power should be abolished. (iv) Reprimand: the Speaker addresses the offender, either standing in his place (Member) or at the bar of the House. In the “cash for questions” scandal of recent times, Peter Preston, the editor of The Guardian, was summoned before the bar of the Commons. He had authorised the use of a fake fax on Commons’ headed paper, purporting to come from the office of Jonathan Aitken, MP, to get a copy of the MP’s bill for a two-night stay at the Ritz Hotel in Paris. (v) Admonition: milder than the above, but administered in the same way. (vi) Fines: not used by the House of Commons since 1666, though the Select Committee in 1967 recommended that this be revived by statute. The House of Lords, as a court of record (it is uncertain whether the House of Commons is such), has frequently imposed fines. Standards of Conduct Following concern about unethical behaviour by some Members of Parliament, for example the “cash for questions” scandal (ie bribery of MPs to ask Parliamentary questions) in the 1990s, the Committee on Standards in Public Life (originally the chaired by Lord Nolan), was set up in1994. It is an independent advisory committee. Its recommendations led the House of Commons to make a number of changes to the way MPs’ conduct was to be regulated, including creating:

• a new Code of Conduct for MPs; • the post of Parliamentary Commissioner for Standards; • a new Committee on Standards and Privileges.

The Code of Conduct provides guidance to MPs on the standards of conduct expected during the course of their parliamentary duties. There is also a Register of Members’ Interests in which MPs are required to register

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financial and other interests. These include outside jobs or consultancy work, gifts or membership of organisations that might affect their position in Parliament. The Parliamentary Commissioner for Standards oversees the maintenance and monitors the operation of the Register of Members’ Interests. The Commissioner receives and investigates complaints about Members who are allegedly in breach of the Code of Conduct and Guide to the Rules and reports the findings to the Committee on Standards and Privileges. The work of the Commons Committee on Standards includes deciding on complaints against individual MPs reported to them by the Parliamentary Commissioner for Standards, and oversight of the work of the Commissioner. There is also a Code of Conduct, a Privileges and Standards Committee and a Register of Interests for members of the House of Lords.

Essential Facts

• The UK Parliament consists of the monarch, the House of Commons and the House of Lords. • The maximum life of a UK Parliament is 5 years. • An Act of Parliament usually requires the consent of the House of Commons and the House of Lords, and the assent of the monarch. • Acts of Parliament may be passed without the consent of the House of Lords, utilising the Parliament Acts of 1911 and 1949. • Most residents of the UK aged 18 years or over are entitled to vote in UK elections. • Most residents aged 18 years or over are entitled to stand for election to the UK Parliament. The Parliament is elected using the “first past the post” electoral system. • Important functions of Parliament include the passing of laws, scrutiny of the executive and the control of taxation and expenditure. • Parliamentary privilege is part of the law and custom of Parliament and refers to the freedom of each House to conduct its proceedings without interference from the Crown, courts, external bodies or the public. • MPs and Members of the House of Lords are expected to display the highest standards of conduct and various mechanisms are in place to enforce this.

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Essential Cases

Jackson v Attorney-General (2005): concerned the validity of an Act of Parliament passed using the procedures of the Parliament Acts 1911 and 1949. Duncan Sandys’ Case (1938): concerned the protection of freedom of speech and debate in Parliament by the law of privilege. Pepper v Hart (1993): held that the use of Hansard as an aid to statutory interpretation was permitted. Stourton v Stourton (1963): held that the law of parliamentary privilege will extend to protect members of Parliament from civil proceedings. Bradlaugh v Gossett (1884): held that the House of Commons was not subject to control by the courts in its administration of internal proceedings. R v Chaytor and Others (2010): held that parliamentary privilege did not protect members from prosecution for a criminal offence.

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7 the united kingdom government The Government of the United Kingdom consists of the monarch, the Prime Minister, the Cabinet and other Ministers of the Crown. The Queen is the titular head of the Government and all actions of government are carried out in her name. Her role, however, is largely a formal one and the position of the monarch has already been discussed fully in Chapter 5. THE PRIME MINISTER AND THE CABINET There are many areas in public law where law and politics become entwined and none more so than in relation to the Prime Minister and the Cabinet. There are relatively few statutes and precious little case authority which refer to either the Cabinet or the Prime Minister. As a result, the rules governing each institution are not, in the main, rules of strict law but derive from political conventions and usage. The Cabinet and the office of Prime Minister have evolved together since the 18th century and the decline of the Privy Council seems to have coincided with the emergence of the Cabinet. In 1713, the Treaty of Utrecht was concluded by the Cabinet, not by the Privy Council, and in 1714 George I acceded to the throne. He was from Hanover, in what is now Germany, with little interest in Britain and his attendances at Cabinet became less and less frequent until they finally stopped altogether. Thus, someone else had to preside in place of the monarch and it is accepted that Sir Robert Walpole (1721–42), when First Lord of the Treasury under Georges I and II, became the first Prime Minister. However, many historians doubt that anyone prior to Sir Robert Peel (1841–46) would count as the first modern Prime Minister. By that time, some of the important conventions of the Cabinet were becoming firmly established. The Prime Minister Appointment As we have seen when dealing with the personal prerogatives of the monarch in Chapter 5, the Queen, by convention, invites the leader of the political party which wins the largest number of seats at a General Election to form a Government. Since all the major political parties now elect their own leaders, the monarch has little discretion here. Although in the past there have been Prime Ministers who were members of the House

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of Lords, today, the Prime Minister must, by convention, be a member of the House of Commons. Experience Prime Ministers are experienced party politicians and will usually have held previous ministerial office. Previous Prime Ministers have averaged over 20 years’ membership in Parliament before becoming Prime Minister. However, the current Prime Minister, David Cameron, did not hold ministerial office prior to assuming the premiership in May 2010 (his previous 9 years in Parliament had been spent in Opposition). Convention now requires the Prime Minister to be a member of the House of Commons. In 1963, when the Earl of Home emerged as the favoured successor to Harold Macmillan and was invited to become Prime Minister, he renounced his peerage and became “plain” Sir Alec Douglas-Home. Apart from Douglas-Home, no Prime Minister since Lord Salisbury in 1902 has come from the House of Lords. Joint offices For most of its history, the office of Prime Minister has been held along with a recognised post, usually the First Lord of the Treasury (the Second being the Chancellor of the Exchequer). When the Civil Service Department was established in 1968, the Prime Minister also became the Minister for the Civil Service. Pay and conditions The Prime Minister has official residences in Downing Street and at Chequers and is paid and pensioned under the Ministerial and Other Salaries Act 1975 and the Ministerial and Other Pensions and Salaries Act 1991. The Prime Minister’s pay consists of two elements: the parliamentary salary (Members’ pay) and a ministerial salary. The combined salary entitlement for the Prime Minister from April 2010 has been £198,661, but he has agreed to take a pay cut and receives £142,500 per annum (2013 figure). Powers of the Prime Minister The appointment or dismissal of Ministers The powers of the Prime Minister are considerable when his or her party has an outright majority in the House of Commons. However, when no party wins an outright majority, as happened in the general election of 2010, a coalition with a smaller party may be formed and the Prime Minister must share power, ministerial posts etc with the MPs from the smaller party.

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The monarch has nominal powers of appointment and dismissal but these are exercised on the advice of the Prime Minister. There are no legal or conventional restraints on the Prime Minister’s choice of Ministers, although there are political considerations to be taken into account, especially when there is a coalition government. The monopoly of appointment augments the power of the Prime Minister over backbenchers and junior Ministers. The appointment of Cabinet Ministers By convention or custom, certain Ministers are always included in a peace-time Cabinet: the Chancellor of the Exchequer, Foreign Secretary, Home Secretary, Secretary of State for Scotland, Leader of the House of Commons, Lord Chancellor and heads of major spending departments. This limits the Prime Minister’s freedom of choice, but he or she can reshuffle, promote or dismiss at will. The Prime Minister can use this power to maintain discipline and increase Prime Ministerial power. The Queen dismisses on the Prime Minister’s advice and it is not clear whether there are any circumstances in which she could refuse. It would appear that the Prime Minister’s resignation alone requires the resignation of all other Ministers, as in 1990, with the resignation of Margaret Thatcher. Control over the machinery of government The Prime Minister decides on the allocation of tasks to different government departments and whether departments should be created, amalgamated, re-named or abolished. In 1997, the Department of National Heritage, created by John Major in 1992, was re-named the Department of Culture, Sport and the Media by Tony Blair. Following the election of the coalition government in 2010, the Department for Business, Innovation and Skills was formed, headed by a Liberal Democrat Secretary of State. Control over the Cabinet The Prime Minister controls the agenda, chairs the meetings and sums up Cabinet discussions. He or she also decides which Cabinet committees should be established, who should chair them and who will serve on them (although the Prime Minister will chair important Cabinet committees directly). It is also the case that a Prime Minister may make major decisions without reference to the Cabinet, either personally or in consultation with senior colleagues. Finally, the Prime Minister communicates Cabinet decisions to the monarch and discusses affairs of state with her in a weekly audience.

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Dissolution of Parliament Prior to the passing of the Fixed-term Parliaments Act 2011, the Prime Minister alone had the power to decide on the date of the next general election and advise the Monarch accordingly. This power enhanced the power of the Prime Minister over MPs, parties and the country as a whole. However, Parliament now has a fixed term of five years (in normal circumstances) and this power of the Prime Minister has been removed. Powers of patronage Appointments to archbishoprics, to high judicial office and to high military office are expected to be made on a non-political basis and this leaves the Prime Minister with little discretion. But with others, the Prime Minister’s discretion is real and those in line for appointment may be less inclined to be critical of the Prime Minister. Peerages, knighthoods and other honours, and the chairmanship of a quango, Royal Commission or public inquiry have all been in the gift of the Prime Minister at one time or another, through his nomination and/or advice to the Queen. Policy co-ordination No other Minister has the same information and resources at his disposal as the Prime Minster who can intervene with impunity in what is substantively another Minister’s area of responsibility, as Margaret Thatcher often did. Sometimes this is done through a co-ordinating Minister in the Cabinet Office, eg David Hunt and latterly Michael Heseltine for John Major, Jack Cunningham for Tony Blair and Oliver Letwin for David Cameron. The Prime Minister normally takes a close interest in EU and other foreign affairs as well as economic policy. Constitutional implications of the Prime Minister’s powers In theory, a Prime Minister is primus inter pares (first among equals) but a strong individual can dominate the Cabinet and exert overwhelming levels of authority. There is always a danger that a Prime Minister becomes almost dictatorial and is eager to exert control over all aspects of government. This was especially self-evident during the tenure of Margaret Thatcher. However, it is worth noting that when Prime Ministers become overzealous, then they run the danger of losing the respect and support of their senior colleagues. Mrs Thatcher, who lost the confidence of her senior colleagues and many of her party, was dealt with by the Conservatives’ internal party machinery, including the “men in grey suits”, and eventually resigned in November 1990.

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However, it must be remembered that many of the Prime Minister’s powers are curtailed when his or her party has entered a coalition with another party to form a government as was the case from 2010 to 2015. He/ she must make concessions both in terms of policy and of ministerial posts in order to retain the support of the coalition party. The Cabinet The Cabinet is the name given to a special committee of senior Ministers who are responsible for making and controlling government policy. They meet weekly in the Cabinet Room in 10 Downing Street to discuss the issues of the day. Like the Prime Minister, the Cabinet is almost invisible in statute law. As an organ of government, it rests on convention and there is no statute or common law rule as to its composition or powers. The Cabinet in Parliament is the central feature of the British constitution. It is the collective leadership of the majority party (or coalition parties) in the House of Commons and, through its control of that party, the Cabinet exercises control over Parliament. A modern Cabinet consists of 18–24 members and except when there is a coalition government, is politically homogeneous, ie all Conservative or Labour, and its members must be members of the House of Lords or House of Commons. There are some political and administrative constraints on the Prime Minister’s choice of Cabinet members. As mentioned above, certain Ministers have to be included and there is perhaps also a tradition or convention arising that a woman should be included in the Cabinet. There was something of an outcry when John Major did not have a woman in his first Cabinet in November 1990. He appointed two women to his second, following the 1992 General Election (Virginia Bottomley and Gillian Shephard). Mr Blair appointed five women to his first Cabinet in 1997, and David Cameron appointed four in 2010 and seven in 2015. Functions The Committee on the Machinery of Government (the Haldane Committee) in its report of 1918 attempted to summarise the functions of the Cabinet as follows:

• the final determination of policy to be submitted to Parliament; • the supreme control of the national executive in accordance with the policy prescribed by Parliament; and • the continuous co-ordination and delimitation of the activities of the departments of state.

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However, the Haldane Committee’s view is closer to the 19th century than to modern times. The 19th-century Cabinet was smaller, government involvement in large areas of citizens’ lives was less, and there was more time to discuss long-term policy. Today, some decisions are taken by the Prime Minister alone, some in consultation with senior colleagues, others by Cabinet committees, and some by permanent officials. Furthermore, today’s policy is not “prescribed by Parliament”. Parliament is informed or consulted, asked to pass legislation and approve expenditure; it rarely prescribes policy. Other changes since Haldane’s time include:

• the greatly increased scope and complexity of the functions of government; • considerable increase in the power of the Prime Minister; • increased power and responsibilities of the civil service and the associated agencies; and • tightening of the party system.

Cabinet meetings The Cabinet meets once or twice weekly when Parliament is in session. The duration of meetings varies according to the wishes of the Prime Minister: Tony Blair’s were said to last no longer than 40 minutes and this practice continues under Gordon Brown. The following rules generally apply to the Cabinet:

• since time is short, there is little opportunity for proper discussion of policy; • votes are rarely taken; • the emphasis is on processing the business of government; • a matter will not be decided in Cabinet if it can be dealt with by the individual Minister or a Cabinet committee; • memoranda to be discussed must be circulated 48 hours in advance; • the organisation of Cabinet business is carried out through the Cabinet Secretariat in the Cabinet Office; • the Cabinet acts as a sort of clearing house for the Government and is the central point of a complex decision-making structure.

Collective responsibility The doctrine of collective responsibility evolved gradually, as the Cabinet itself developed its constitutional role. In 1878, Lord Salisbury said: “. . . for all that passes in Cabinet every member who does not resign is absolutely

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and irretrievably responsible . . .” Thus, so long as a person serves as a Minister, he or she shares in the collective responsibility of all Ministers and must not publicly criticise or dissociate himself from government policy. The convention has occasionally been suspended. In 1975 there was no attempt to conceal the differences of opinion within the Cabinet on the question of remaining within the European Economic Community. Ministers who disagreed with the majority view (that continued membership of the EEC should be recommended to the electorate) were free to speak and campaign on the issue outside Parliament. Furthermore, on certain issues of conscience (for example, capital punishment, abortion or euthanasia) a free vote is universally accepted. The doctrine of collective responsibility may be relaxed when there is a coalition government. In the coalition agreement made between the Conservatives and the Liberal Democrats following the General Election of 2010 a number of policy areas were set out where the two parties were in fundamental disagreement. These included: the renewal of Trident nuclear submarines; the Alternative Vote electoral system; the construction of nuclear power stations. The doctrine of collective responsibility has a number of political advantages: • it reinforces party unity; • it helps to maintain the Government’s control over legislation and public expenditure; • it veils disagreements between departments; • it reinforces the traditional secrecy which pervades the decisionmaking process; and • it helps to maintain the authority of the Prime Minister. Cabinet Committees The 19th-century Cabinet set up ad hoc committees to consider particular problems (such as the conduct of the Crimean War), and to draft legislation, among other things. The first permanent committee was set up in 1903: the Committee of Imperial Defence. This showed the value of a permanent committee charged with a major policy area. In both World Wars, a comprehensive system of committees was set up, and after 1945 the Labour Government adopted the system to peace-time use. It has remained ever since. The committees are intended to consider particular policy areas in detail. They have more time than the Cabinet to do this and the Cabinet

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usually endorses their recommendations and decisions. Where a committee decision is unanimous, the Cabinet will not normally re-open the issue. The committees’ members need not all be Cabinet Ministers, and they are paralleled by committees of officials from relevant departments. Legislative power Though the Cabinet is an executive body, it has wide powers over legislation, derived from the position it enjoys as head of the ruling party (or coalition parties), pledged to carry out a legislative programme based on its manifesto. This programme tends to crowd out most other legislation. A large proportion of parliamentary time is spent in considering and passing Government Bills. Special importance thus attaches to the Legislative Programme Committee of the Cabinet, which has the remit of dealing with the complex Government legislative programme, and determining the content of the Queen’s Speech. It is chaired by the Leader of the House of Commons and the Lord Privy Seal. MINISTERS OF THE CROWN AND CENTRAL GOVERNMENT DEPARTMENTS The increase in state intervention in the economy and aspects of social policy in the 19th and 20th centuries gave rise to a considerable growth in the structure and functions of central government. Initially, the administration of such functions was delegated to ad hoc bodies unaccountable to Parliament. Following demands for accountability, such functions were largely transferred, during the latter part of the 19th century, to existing or newly created government departments each under the control of a Minister of the Crown who was directly responsible to Parliament. It is principally through such departments that government policy is put into effect after Parliament has enacted legislation. Ministers and Secretaries of State The Sovereign, on the advice of the Prime Minister, appoints Ministers. Some offices (for example, Lord Chancellor, or Secretary of State) derive their existence from the Royal Prerogative, but statutory functions can be assigned to them. The Minister is created a corporation sole, given a seal of office and entrusted with a loosely defined range of functions known as a portfolio. The major departments of state are usually headed by a Secretary of State (for example, the Secretary of State for Defence)

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and particular prestige has always attached to this office. As a matter of strict law, a Secretary’s duties are interchangeable, but in practice they limit their functions to those related to the department in question and some powers and duties may be conferred on a specific Secretary of State by statute or Order in Council. There were 16 designated Secretaries of State as of 2015. In addition to Secretaries of State and other Cabinet Ministers, some of whom do not have departmental responsibilities, for example the Lord Privy Seal, there are Ministers of State with particular responsibilities for part of a department’s work, and Parliamentary Under-Secretaries of State. The number of Ministers who may be paid, sit and vote in the House of Commons at any one time is limited to 95 by s 2(1) of the House of Commons Disqualification Act 1975. The purpose of this provision is to limit the powers of patronage of the Prime Minister, but there is no legal limit on the number of Ministers who can be appointed. Thus, some holders of Ministerial office are not in the House of Commons, but in the House of Lords. By convention, Ministers should be members of one or other House to ensure contact with the legislature, and reinforce the doctrine of ministerial responsibility – but this is not a rule of law. They are almost always political appointments, although the Law Officers of the Crown may be appointed on a non-political basis. The Law Officers of the UK Government are the Attorney-General, the Advocate-General for Scotland and the Solicitor-General. Now that the Scottish Parliament is operational, the Lord Advocate and the Solicitor-General for Scotland are part of the Scottish Executive (Scotland Act 1998, s 48). The Deputy Prime Minister/First Secretary of State The post of Deputy Prime Minister has been used infrequently, and its status and functions are at the whim of the Prime Minister of the day. The post has traditionally been coupled with some other Cabinet post, such as First Secretary of State. It has become customary for Labour Governments to include a Deputy Prime Minister to reflect the status of the Deputy Leader of the Labour Party. However, a Conservative Prime Minister may personally choose whether or not to appoint such a Deputy. After the General Election of 2010 in which no party won a majority of seats, the Conservatives and the Liberal Democrats formed a coalition government. The leader of the Conservatives, David Cameron became Prime Minister and the leader of the Liberal Democrats Nick Clegg became Deputy Prime Minister. Mr Clegg was also appointed as Lord President of

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the Council with responsibility for political and constitutional reform., but not as First Secretary of State. Following the general election of 2015, the Prime Minister did not appoint a deputy. Powers and duties of Ministers The majority of Ministers’ powers are derived from statute. Generally, powers are conferred on Ministers, not on departments, and, legally speaking, all decisions taken in departments are those of the Minister. But in practice a great deal of decision-making is carried out by officials, given the vast amount of work which has to be dealt with at any one time. Normally, this is unproblematic since many decisions are fairly routine. Sometimes, however, there are concerns that a Minister is not in control of his department and that civil servants have too much control over policy. Financial interests Ministers must not allow a conflict to arise between their public responsibilities and private interests. Detailed rules have been laid down in the Ministerial Code: A Code of Ethics and Procedural Guidance for Ministers. Ministers must not, among other things:

• be directors of public companies; • hold shareholdings which could cause a conflict of interest; or • use inside information obtained in government for financial gain.

There are also quite detailed rules about the acceptance of gifts, hospitality or services which would, or might appear to, place the Minister under an obligation. Ministerial responsibility The doctrine of ministerial responsibility performs the function of securing a level of accountability and control over the executive by Parliament. There are two aspects of responsibility: collective and individual. Under the doctrine of collective ministerial responsibility, all Ministers must either accept Cabinet decisions or dissent publicly and resign, unless collective responsibility is waived by the Cabinet on a particular issue. This mechanism allows Governments to show a united front to Parliament and the public. Collective responsibility is followed slavishly by Governments since the executive must be seen as strong and there can be no doubt over its policies. Thus, if a Minister is placed under parliamentary pressure on a particular issue, the remainder of the Government will rally to give support since the policy will be a common one.

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On the other hand, individual ministerial responsibility ensures that Ministers are responsible to Parliament for the administration of their individual departments, ie a Minister is accountable for not only personal decisions but also the actions and decisions of civil servants. The most infamous example of this doctrine can be found in the Crichel Down Affair when the Air Ministry had compulsorily purchased land for defence purposes in 1938. By 1954, the land was no longer required and it was transferred to the Ministry of Agriculture which ultimately let it out to a tenant. The original owner of the land was neither consulted nor offered the opportunity to regain ownership. An inquiry into the affair discovered that many other landowners had been similarly affected and that the Ministry had acted in an underhand fashion. This resulted in widespread parliamentary and public condemnation and the Minister for Agriculture, Thomas Dugdale, resigned, taking full responsibility for the actions of his department. Similarly, in 1982, the Foreign Secretary, Lord Carrington, took personal responsibility for mismanagement of the Foreign and Commonwealth Office in failing to appreciate the threat of Argentine invasion of the Falklands. In most cases, attempts are made to invoke ministerial responsibility by parliamentary questions or debate. In this way, parliamentary criticism can lead to public condemnation and might cause a resignation, but such resignations are becoming increasingly rare. In modern times, there has been a blurring of the distinction between questions of mismanagement and personal behaviour and many resignations since 1945 have in fact involved questions of personal conduct, such as those of John Profumo in 1963 (who lied to the House) and David Mellor in 1992 who was eventually forced out of the Cabinet following a war of attrition with the newspapers over his moral conduct. More recently, the former Home Secretary, David Blunkett, was forced to resign after his private life led to the alleged speeding-up of an immigration application for the nanny of his son. In recent years, given the growth in the number of executive Next Steps Agencies, the notion of ministerial responsibility has been identified with the idea of ministerial accountability, and a policy/operational dichotomy has developed in some government departments. Thus, the blame for many acts of mismanagement within a government department may be attached to the agency head or civil servant directorate involved instead of, or as well as, the Minister. Corrective action within the department will, however, be undertaken by the Minister.

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Organisation of central departments Government departments have the responsibility of carrying out the core functions of government in the UK. There were 24 Ministerial Departments in 2015. They initiate the vast majority of Government legislation and have powers and functions laid out by statute, subject to some ministerial powers which are exercised by virtue of the Royal Prerogative. Departments have a clear structure and are headed by a Minister or Secretary of State who is assisted by civil servants in the formulation of policy and legislation. The doctrine of ministerial responsibility ensures that Ministers are ultimately accountable to Parliament for the actions of their departments and officials. The Ministers of the Crown Act 1975 allows for departments to be re-structured and responsibilities to be transferred through Order in Council. These powers have been utilised on a number of occasions in order to reflect ever-changing policy objectives within the Government. The degree of discretion available to government departments can be considerable and, besides ministerial responsibility, they are also subject to scrutiny by the Parliamentary Commissioner for Administration concerning instances of maladministration. Other forms of organisation of government business There are several other types of organisation which carry out functions for government but have a certain freedom from ministerial interference. These include:

• • • • •

Non-Departmental Public Bodies (or quangos); Non-Ministerial Departments; Executive (or Next Steps) Agencies; High Profile Groups; Public Corporations.

Non- Departmental Public Bodies (often called quangos –quasi-autonomous non-governmental organisations). These may be either Advisory Bodies, Executive Bodies or Tribunals and are established by statue. In 2013 there were almost 100 in total. Some Executive Bodies are responsible for large numbers of staff and big budgets, for example the Environment Agency. They are responsible for the execution of policy on a day-today basis. Their members are appointed by Ministers but they are not attached to any government department and operate at arm’s length from Ministers, although Ministers are accountable to Parliament for them.

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Non-Ministerial Departments are departments, often created by statute to perform a particular public function on behalf of the Crown. Ministers may have powers to appoint members and provide oversight but they have a considerable degree of independence. Examples include the Charity Commission and her Majesty’s Revenue and Customs. There were 22 of them in 2015. Executive Agencies were established by Mrs Thatcher’s government in the 1980s as a means of achieving better managed and more efficient public services. Each is headed by a Chief Executive, not a Minister and they are not created by statute. The relationship between the Agencies and their government departments is set out in framework agreements which are not formally legally binding. Examples include the DVLA, the UK Space Agency and the Royal Parks. There were over 350 of them in 2015. High Profile Groups of which there are around 70 include the PassportOffice and the Border Agency which report to the Home Office Public Corporations include the BBC and the Civil Aviation Authority. There were 11 of them in 2015 NDPBs and Executive Agencies have come in for criticism because of a perceived lack of accountability and every so often the government promises “a bonfire of quangos”. The NHS is often considered to be a Non-Departmental Public Body but as it is closely connected to the Department of Health and its Minister/ Secretary of State, it is in a category of its own. Essential Facts • The Government of the UK consists of the monarch, the Prime Minister, the Cabinet and other Ministers of the Crown. • The Prime Minister is appointed by the Queen and is normally the leader of the party which has won the largest number of seats in a General Election. • The Prime Minister is the most powerful member of the Government and, by convention, is a Member of the House of Commons. • The Cabinet is the name given to a special committee of senior Ministers who are responsible for making and controlling government policy. • The Cabinet reflects the collective leadership of the majority party (or parties in a coalition) in the House of Commons and, through its control of those parties, the Cabinet exercises control over Parliament.

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• Ministerial responsibility ensures that Ministers are responsible to Parliament for the administration of their individual departments, ie a Minister is accountable for not only personal decisions but also the actions and decisions of civil servants. • In many cases, attempts are made to invoke ministerial responsibility by parliamentary questions or debate. The media also play an important role. In this way, parliamentary criticism can lead to public condemnation and may cause a resignation, but such resignations are becoming increasingly rare.

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8 the scottish parliament Until 1707, Scotland had its own Parliament, quite separate from that of England. For various reasons, mainly economic, the union of the two Parliaments was proposed in the early years of the 18th century and in 1707 the Parliament of England and the Parliament of Scotland passed separate Acts of Union. As a result, these Parliaments ceased to exist and were replaced by the Parliament of the United Kingdom of Great Britain. The union was not popular with many of the Scottish people. In fact, there was rioting in the streets of Glasgow and Edinburgh when the terms were made public. However, because of Scotland’s poor economic state, the union was almost inevitable and it was largely tolerated for over 150 years. A number of factors, including the rise of the Irish Home Rule movement in the 19th century, led to the emergence of a Scottish Home Rule Association in 1886. The National Party for Scotland was founded in 1928 and began to contest elections. Six years later, it merged with another party, the Scottish Party, to form the Scottish National Party (SNP). It was not until the late 1960s and early 1970s that the SNP began to make real headway in terms of winning seats in the UK Parliament and in Scottish Councils. The Welsh nationalist party, Plaid Cymru, was also having some electoral success. The Labour Government elected in 1974 lacked an outright majority and was forced to make concessions to the nationalists. Eventually in 1977, directly elected assemblies for Scotland and Wales were proposed in separate Scotland and Wales Bills. During the parliamentary process an amendment was introduced which made it necessary for 40 per cent of the electorates to vote “Yes” in referenda before the Acts could be brought into operation. The 40 per cent threshold was not met either in Scotland or in Wales, although, in the case of the Scotland Act 1978, the majority of those who voted did vote “Yes”. This led to a vote of no confidence in the Labour Government which was passed and the Government fell. The Conservatives won the ensuing General Election in May 1979 and repealed the Scotland and Wales Acts 1978 almost immediately. The Conservative Government remained implacably opposed to devolution during its 18 years in power but the desire for some form of devolution remained in Scotland. A Campaign for a Scottish Assembly was set up in 1980, from which grew a cross-party Scottish Constitutional Convention (SCC). This Convention published a number of documents advocating a Scottish Parliament.

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The Labour and Liberal Democrat Parties included a commitment to a Scottish Parliament, based on the SCC’s proposals, in their manifestos for the 1997 election. The Labour Party won that election and within 3 months produced a White Paper which set out plans for a devolved Parliament with legislative and limited tax-varying powers. These plans were endorsed in a referendum of the Scottish people and the Scotland Act was passed in 1998. The first General Election to the Scottish Parliament was held in May 1999 and on 1 July the Parliament was formally opened by the Queen and assumed its full powers. The powers of the Scottish Parliament The powers of the Scottish Parliament are not listed in the Scotland Act 1998. Instead, there are lists of the powers which the UK Parliament decided not to devolve to the Scottish Parliament. These are said to be reserved to the UK Parliament. Any power which is not listed is assumed to be devolved to the Scottish Parliament and within its legislative competence. This means that the Scottish Parliament has the power to make law in these areas. However, because the UK Parliament remains the supreme law-making body for the UK, that Parliament retains the power to make laws for Scotland in the devolved areas. Matters reserved to the UK Parliament The reserved matters are listed in Sch 5 to the Scotland Act 1998. There are general reservations and specific reservations. General reservations include:

• the Crown; • the Union of Scotland and England; • the UK Parliament; • the continued existence of the Scottish High Courts; • most aspects of foreign affairs; • the defence of the realm; • the armed forces; • the registration and funding of political parties; • the Civil Service; • treason.

Specific reservations are too detailed to list here in their entirety. They are grouped under 11 heads and include:

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• financial and economic matters; • many aspects of home affairs; • trade and industry; • energy; • many aspects of transport; • social security; • regulation of the professions; • employment rights and duties and industrial relations; • medicine and some aspects of health; • regulatory responsibilities relating to TV and radio broadcasting and some minor matters relating to libraries; • miscellaneous matters including most aspects of equal opportunities; weapons of mass destruction; time scales and zones; and the regulation of activities in outer space.

From an examination of the lists of reserved matters, we can deduce the matters devolved to the Scottish Parliament. Broadly speaking, these include:

• • • • • •



• • •



• • •

overall responsibility for the NHS in Scotland; education and training; local government; social work; housing; and land use planning; many aspects of economic development, including tourism; many aspects of transport; most aspects of civil and criminal law; the criminal justice system; courts and tribunals; prisons; police and fire services; civil defence; and emergency planning; protection of animals; environmental protection; water and sewerage; flood prevention; and the natural and built heritages; agriculture; forestry and fishing; and food standards; sport and the arts; miscellaneous matters including statistics, public records and registers.

The Scottish Parliament also has the power, within limits, to amend or repeal Acts of the UK Parliament which relate to devolved matters. The Human Rights Act 1998 is completely protected from modification, as are most aspects of the Scotland Act 1998 itself and the European Communities Act 1972.

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However, it was realised as the Scotland Bill was going through the UK Parliament that the boundaries between reserved and devolved matters would need to be adjusted from time to time. Section 30 of the Scotland Act 1998 enables amendments to be made to Schedule 5 and to other Acts where necessary. This is done by means of an Order in Council, a type of subordinate legislation. They are commonly known as Section 30 Orders. A particularly important one was made in 2013 to enable the Scottish Parliament to pass legislation to enable a referendum on independence to be held in 2014. The Calman Commission and the Scotland Act 2012 Since the establishment of the Scottish Parliament in 1999, there has been much discussion as to whether the powers of the Scottish Parliament should be enlarged. In 2007, the Scottish Parliament agreed to establish a Commission on Scottish Devolution. Sir Kenneth Calman was appointed chairman. All the main political parties were represented on the Commission apart from the SNP who declined to participate because the question of independence for Scotland was not included in the Commission’s remit. The Commission was independent of any political party and reported to both the Scottish Parliament and the UK Parliament. Its final report was published in 2009 and recommended that various powers should be devolved to the Scottish Parliament. These include:

• The administration of elections to the Scottish Parliament; • The regulation of airguns; • Responsibility for aspects of licensing and control of controlled substances; • Regulation of drink-driving limits; • The determination of the national speed limits in Scotland; • The power to vary income tax for Scottish taxpayers by up to 10%; • Greater borrowing powers; • Control of various minor taxes including a new land and buildings tax and control over business rates and a Scottish Landfill tax.

Following much discussion the UK Parliament passed the Scotland Act 2012, with the consent of the Scottish Parliament, which devolved these powers to the Scottish Parliament. Some of these came into effect in 2014 However, for technical reasons, the Scottish Parliament will not be able to exercise the Scottish rate of income tax until 2016.

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The Referendum on Independence for Scotland When the Scottish National Party unexpectedly won an outright majority in the Scottish General Election of 2010 its leader immediately announced that he had a mandate to pursue the Party’s goal of independence for Scotland. This led to protracted discussion with the UK Government as the union of Scotland and England is a matter reserved to the UK Parliament by Schedule 5 of the Scotland Act 1998. In October 2012 an agreement was signed between the Prime Minister and the First Minister (called the Edinburgh Agreement). It was agreed that the UK Parliament would make a section 30 Order which would give the Scottish Parliament the power to hold a referendum of the people living in Scotland on the question of independence. The section 30 Order was made in January 2013. The Scottish Parliament then passed the Scottish Independence Referendum Act 2013 which enabled a referendum to be held and the Scottish Independence Referendum (Franchise) Act 2013 which gave the right to vote in the referendum to 16 and 17 year olds. The date for the referendum was set as 18 September 2014.The result of the referendum was 45% in favour of independence and 55% against. The Smith Commission and the Scotland Bill 2015 On 19 September 2014, the day the independence referendum result was announced, the Prime Minister, David Cameron and other leading party politicians, announced the establishment of a cross-party commission to be chaired by Lord Smith of Kelvin to examine and make recommendations for the devolution of further powers to the Scottish Parliament. On 27 November 2014 the commission published its recommendations, which included the following:





• The Scottish Parliament to have complete power to set income tax rates and bands. • The Scottish Parliament to receive a proportion of the VAT raised in Scotland, amounting to the first ten percentage points of the standard rate. • UK legislation to state that the Scottish Parliament and Scottish Government are permanent institutions. The parliament will also be given powers to legislate over how it is elected and run. • The Scottish Parliament to have power to extend the vote to 16- and 17-year-olds, allowing them to vote in the Scottish General Election in 2016.

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• The Scottish Parliament to have control over a number of welfare benefits, including the under-occupancy charge (popularly known as the bedroom tax). • The Scottish Parliament to have new powers to make discretionary payments in any area of welfare without the need to obtain prior permission from the Department of Work and Pensions. • The Scottish Parliament to have control over Air Passenger Duty charged on passengers flying from Scottish airports. • Responsibility for the management of the Crown Estate’s economic assets in Scotland, including the Crown Estate’s seabed and mineral and fishing rights, and the revenue generated from these assets, to be transferred to the Scottish Parliament. • The licensing of onshore oil and gas extraction underlying Scotland to be devolved to the Scottish Parliament. • The block grant from the UK government to Scotland to continue to be determined via the operation of the Barnett Formula. New rules to define how it will be adjusted at the point when powers are transferred. MPs representing constituencies across the whole of the UK to continue to decide the UK’s budget, including income tax. • The Scottish and UK governments to draw up and agree on a memorandum of understanding to ensure that devolution is not detrimental to UK-wide critical national infrastructure in relation to matters such as defence and security, oil and gas and energy.

Scotland Bill 2015 At the time of writing ( July 2015) a Scotland Bill is making its way through the House of Commons. The Committee Stage was taken in a Committee of the whole House because of its constitutional significance. The main object of the Bill is the implementation of the recommendations of the Smith Commission. Almost all of the recommendations of the Smith Commission mentioned above are incorporated in the clauses of the Bill, with the addition of the management and operation of certain tribunals which are currently reserved to the UK, statutory consultation on the BBC’s Charter and the power to vary the number of gaming machines in betting premises. If all these proposals make their way onto the statute book, the Scottish Parliament will become one of the most powerful devolved institutions in the world.

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Financing the Scottish Parliament The main source of finance for the Scottish Parliament and the Scottish Executive is a block grant allocated by the UK Government and Parliament. The level of the block grant is decided from year to year, in accordance with a formula which decides the level of spending between Scotland, England and Wales. This is known as the “Barnett formula”, after the Chief Secretary to the Treasury in 1978 when the formula was devised. The Scottish Parliament also had the power from the Scotland Act 1998 to increase or decrease the basic rate of income tax for Scottish taxpayers by up to three pence in the pound. This power was never used and was allowed to fall into abeyance, possibly inadvertently, in 2010. However the Scotland Act 2012 gives the power to the Scottish Parliament to vary the rate of income tax by up to ten pence As this is coupled with a reduction in the block grant it receives from the UK Government, the power will undoubtedly have to be used. It is expected to be used from 2016. The Scotland Bill 2015 gives the Scottish Parliament vastly increased, but not complete powers over income tax rates excluding income from dividends and savings. In addition it assigns the first 10 per cent of receipts from the standard rate of VAT to the Parliament. If these become law the Scottish Parliament will raise about 50 per cent of its budget from its own tax revenues and thus the block grant from the UK Parliament to the Scottish Parliament will have to be further adjusted by means of the Barnett formula.

Members of the Scottish Parliament and elections There are 129 Members of the Scottish Parliament, commonly known as MSPs. They are elected by a form of proportional representation known as the Additional Member System. Of these, 73 are constituency members, elected by the traditional method of “first past the post”. The remaining 56 are regional members. They are allocated seats on the basis of a second vote cast not for an individual but for a political party. This “tops up” the political parties’ representation and enables minority parties to be represented in the Scottish Parliament. It is also possible for people without any political affiliation to stand as independents. Both the constituency and the regional MSPs have the same status in law. The Additional Member System normally produces a result in which no political party wins an outright majority and this was the case in the

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first three elections held in 1999, 2004 and 2007. However, in the general election to the Scottish Parliament, in 2011, the SNP unexpectedly won an outright majority, gaining 69 of the 129 seats. Ordinary General Elections to the Scottish Parliament are normally held on the first Thursday of May every four years. The first of these was held on 6 May 1999. However, the Fixed – Term Parliaments Act 2011 fixed the date of the next UK General Election as May 2015 which would have clashed with the next Scottish General election. As a result the UK Parliament had to provide for the postponement of that election to 2016. It is likely that a similar provision will apply to subsequent elections where there will be a clash. An extraordinary General Election may be held in two situations. The first of these is when at least two-thirds of the MSPs vote for an earlier election. This might be because the Parliament had become unworkable because of deadlock between the political parties. This has not yet happened in the life of the Parliament. The second situation is where, for some reason such as the death or resignation of the incumbent, the office of First Minister has been vacant for a period of 28 days. If the seat of a constituency member falls vacant, a by-election will be held, normally within 3 months, to elect a replacement. If the seat of a regional member who was elected from a political party list falls vacant, the vacancy is filled by the person next on that party’s list who is willing to serve and is acceptable to the party concerned. If the regional seat had been held by an independent, the seat remains vacant until the next General Election. The right to vote in Scottish parliamentary elections is based on similar principles to the right to vote in UK parliamentary elections but is extended to include members of the House of Lords and European Union citizens resident in Scotland. To stand for election to the Scottish Parliament, a person must be 18 and a British, Commonwealth, Irish or European citizen resident in the UK. Several categories of people are disqualified from standing for election to the Scottish Parliament, as follows:

• judges; • civil servants, including the staff of the Scottish Executive; • members of the armed forces; • members of police forces; • members of foreign legislatures; • holders of certain public offices;

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• senior local government officers who hold politically restricted posts; • undischarged bankrupts; • persons suffering from mental illness; • convicted prisoners serving a sentence of more than 1 year; • persons convicted of corrupt or illegal electoral practices.

There are no provisions in the Scotland Act 1998 to ensure that an equal number of male and female MSPs are elected. However, in the selection of candidates for the first General Election in 1999, the Labour Party “twinned” constituencies in most of Scotland and instructed their members to select one man and one woman for each pair of seats. This resulted in 28 men and 28 women being elected as Labour MSPs. In addition 20 more women from other parties were elected. The number of women MSPs rose to 51 (39.5 per cent) after the election in 2003. This was one of the highest percentages of female representation in parliaments throughout the world. It stayed roughly the same in 2007. In the election of 2011 45 (34.8%) women and 84 (65.2%) men were elected. There is nothing in the Scotland Act 1998 to prevent dual mandates. Having a dual mandate means that an individual is an elected member of two bodies and thus has a mandate from two sets of electors. Thus, it is possible for someone who is a member of the UK or European Parliaments or a local councillor to be elected as an MSP. The various political parties have agreed that from the next Scottish General Election, any councillors who are elected should resign their council seats. However, this is not a matter of law and it appears that the Labour Party may have changed its position on this. How the Scottish Parliament works Most parliaments in the world meet both in plenary session (ie with all members entitled to be present) and in committees where more detailed work is done by a smaller number of members. The Scottish Parliament is no different. The working week used to last from Monday afternoon till Friday lunchtime. This allowed MSPs to travel from their constituencies and regions on a Monday morning and return on a Friday afternoon. The Parliament met in plenary session normally on Wednesday afternoon and all day Thursday. Now the Parliament sitting days are Tuesdays, Wednesdays and Thursdays with plenary meetings, chaired by the Presiding Officer, held in the debating chamber, normally on Wednesdays.

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The committees have been described as the “power house” of the Parliament. The two main types of committee are mandatory committees, which the Parliament must establish, and subject committees, which the Parliament may establish. The eight mandatory committees include the Finance and Audit Committees, the Standards Committee, which deals with MSPs’ conduct, and the Public Petitions Committee. Subject committees include the Education Committee and the Rural Affairs Committee. For an up-to-date list of committees, see http://www.scottish.parliament.uk/ business/committees/index.htm Plenary sessions The Scotish Parliament meets in plenary session for various purposes. The main ones are:

• some of the stages in the law-making process (see below); • First Minister’s Question Time, where the First Minister answers questions put down mainly by members of the Opposition parties; • Question Time, when other Scottish Ministers answer questions put down by MSPs generally; • to receive general statements of policy made by the Scottish Ministers; • debates on general policy issues; • debates on motions of no confidence in the Scottish Government or an individual Minister; • to hear distinguished visitors.

Committee sessions The committees are used mainly for the following purposes:

• some of the stages in the law-making process (see below); • to examine any matter within its remit referred to it by the Parliament or another committee; • to consider the policy and administration of the Scottish Government on any matter within its remit; • to examine any matters within its remit which it considers appropriate; • to consider the need for reform of the law in areas within the committee’s remit; • to initiate Bills on any matter within its remit; • to consider financial proposals and the financial administration by the Scottish Executive of matters within the committee’s remit.

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There are also ad hoc committees which deal with issues on a broad basis, in order to deal with matters which cut across conventional government boundaries, for example social inclusion, environmental sustainability. In some ways these committees act as a revising chamber as they revisit legislation and assess whether any amendments are needed. There are also Cross-Party Groups which consist of members from each of the political parties represented in the Parliament. They provide an opportunity for MSPs, members of the public and relevant organisations to discuss a shared interest in a particular subject or cause. Examples include the Animal Welfare Group, the Palestine Group and the Chronic Pain Group. Committees normally meet in public, not necessarily in Edinburgh, and can take evidence from experts and members of the public in considering any of the above. Making law Making law is probably the most important function of any parliament. The Scotland Act 1998 gives the Scottish Parliament the power to make laws but this power is limited to matters which have not been reserved to the UK Parliament. In addition, the Scottish Parliament cannot make a valid law which is incompatible with the Human Rights Act 1998 or with European Community law. Detailed provisions are built into the Scotland Act to ensure that each proposal for legislation (known as a Bill) is subjected to scrutiny to prevent any provision creeping in which is outside the powers of the Scottish Parliament. When a Bill is introduced into the Parliament, the Presiding Officer must provide a written statement indicating whether or not, in his view, the provisions of the Bill are within the legislative competence of the Scottish Parliament. If the Bill is a Government Bill, the member of the Scottish Government in charge of it should provide a similar written statement. In addition, when a Bill has been passed by the Parliament, certain Law Officers of the Scottish Parliament and the UK Parliament may refer the Bill to the Judicial Committee of the Privy Council, now from 2010 to the UK Supreme Court, for a decision as to its legislative competence. This reference must be made within 4 weeks of the Bill being passed by the Parliament. Secretaries of State in the UK Government may also intervene, again within 4 weeks of the passing of the Bill, primarily if they believe that any provision of the Bill is incompatible with the UK’s international obligations or the interests of defence or national security.

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They do this by making an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent. The stages of a Bill A Bill normally passes through three stages and is then presented for Royal Assent when it becomes an Act of the Scottish Parliament known as an “asp”. There are three main types of Bill:

• Government Bills, which are the most common, introduced by a member of the Scottish Executive; • Committee Bills, introduced by one of the Parliament’s Committees; and • Members’ Bills, introduced by an MSP who is not a member of the Scottish Government.

The Scottish Parliament may also pass Private Bills, which are mainly sponsored by local authorities and Hybrid Bills introduced by Cabinet Secretaries. Consultation As the Scottish Parliament has no second chamber, such as the House of Lords in the UK Parliament, to act as a revising chamber, care has to be taken before a Bill starts on its progress to ensure that ambiguities and anomalies are removed as far as possible. So, best practice is for consultation with interested parties, expert bodies and the like to be carried out before the Bill is introduced into the Parliament. Accompanying documents In addition to the Presiding Officer’s and, in appropriate cases, the Scottish Government member’s written statements as to the legislative competence of the Bill, there is a requirement for certain other accompanying documents. These are:

• a financial memorandum setting out an estimate of the costs to which the provisions of the Bill might give rise; • explanatory notes summarising the provisions of the Bill; • a policy memorandum which sets out the policy objectives of the Bill, details of any consultation carried out and an assessment of any impact on equal opportunities, human rights, island communities, local government and sustainable development.

Stage 1 – Report Once a Bill has been introduced and printed, it is referred to the

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committee of the Parliament within whose remit the subject-matter falls. This committee is known as the “lead committee”. The lead committee considers the general principles of the Bill and prepares a report for the Parliament, taking account of any evidence submitted by interested groups and individuals. The Parliament in plenary session then considers the general principles of the Bill in the light of the lead committee’s report and votes on whether these principles are agreed to. If so, the Bill is referred back, normally to the lead committee, for Stage 2. At least 12 sitting days must elapse before this stage can start. Stage 2 – Committee The lead committee examines the Bill section by section and considers amendments. Each section must be agreed to by the committee. At least 10 sitting days must elapse if the Bill is amended at Stage 2, or 4 days if it is unamended, before the Bill proceeds to Stage 3. Stage 3 – Plenary Stage 3 is taken by the Parliament in plenary session and the Parliament must decide whether to pass the Bill or not, or to refer it back to the lead committee for further Stage 2 consideration. If there is a vote on whether the Bill is to be passed or not, more than a quarter of the MSPs must take part in the vote, ie at least 33. Reconsideration stage This will only take place if one of the Law Officers or a Secretary of State has intervened (see above). The reconsideration stage is taken by the Parliament in plenary session and only amendments which would resolve the problem raised by the Law Officer or the Secretary of State can be made. Once the amendments have been disposed of, the Parliament must decide whether to approve the Bill. Committee and Members’ Bills The procedures for passing Committee Bills and Members’ Bills are very similar to those described above. In the case of a Member’s Bill, the MSP proposing the Bill must gather the support of at least 18 other MSPs, within 1 month of publishing the proposal. Otherwise, the proposal falls. The procedures for a Private Bill are more complicated and involve the establishment of a Private Bill Committee which must give the promoter of the Bill and any objectors the opportunity to present evidence to the members.

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The Scottish Parliament passes around 16 Acts each session, the majority of which are Government Bills. However, the opportunities for nonGovernment members of the Scottish Parliament successfully to promote Members’ Bills are better than those for Members of the UK Parliament. Committee Bills have no equivalent in the UK Parliament. It should be noted that Scottish Ministers have the power to make law, called subordinate legislation, in the form of Scottish Statutory Instruments (SSIs). The Scottish Parliament and the courts The Scottish Parliament is a creation of the UK Parliament and is not a sovereign body. This means that its Acts may be successfully challenged in the courts as being ultra vires (or beyond the powers of ) the Scottish Parliament. Similarly, actions of the Scottish Government can be challenged as being beyond the authority granted by the Scotland Act 1998. These challenges are called “devolution issues” and can arise in virtually any court or tribunal, in civil or criminal cases. Most of the cases in which devolution issues have been raised so far have been criminal cases where it has been alleged that the Lord Advocate has brought a prosecution which is in some way incompatible with the European Convention on Human Rights. One such case which had significant repercussions is Starrs v Ruxton (2000). Starrs was being tried before one of the temporary sheriffs appointed by the Lord Advocate on year-long contracts. Article 6(1) of the ECHR guarantees “a fair and public hearing … before an independent and impartial tribunal established by law”. It was successfully argued for Starrs that a temporary sheriff on a short-term contract might not be independent and impartial as he could be influenced in his decision-making by the desire to avoid unpopularity with the Lord Advocate. The decision in this case led to the removal of temporary sheriffs from the Bench in Scotland. A few cases have involved challenges to the validity of provisions of Acts of the Scottish Parliament. An early case concerned the very first Act passed by the Scottish Parliament. This was Anderson v Scottish Ministers (2003). After Anderson was convicted of culpable homicide, he was kept under a restriction order in the State Mental Hospital under the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. He argued that s 1 of the 1999 Act was incompatible with Art 5 of the ECHR (which concerns the right to liberty) and was therefore outside the legislative competence of the Scottish Parliament. However, the Privy Council, which was then, now the Supreme Court, the highest court of appeal in devolution issues, held that the 1999 Act was not

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incompatible with Art 5 of the ECHR as it contains exceptions which allow for the detention of people of unsound mind. Another example can be found in Adams and Others v Scottish Ministers (2004). The Act which was being challenged was the Protection of Wild Mammals (Scotland) Act 2002 which made fox hunting with dogs illegal. Adams was a manager of foxhounds. He, along with others who participated in fox hunting, argued that the ban on fox hunting breached Art 8 of the ECHR (respect for private and family life) and Art 11 (right to freedom of peaceful assembly and association with others). If these were breaches then provisions of the Act were outside the legislative competence of the Scottish Parliament and therefore invalid. The court was not convinced of these arguments and held that the Act was valid. In the case of Axa General Insurance Ltd v Lord Advocate (2011), insurance companies challenged the validity of the Damages (Asbestosrelated Conditions) (Scotland) Act 2009. Under the Act, conditions such as pleural plaques and other asbestos-related conditions can constitute personal injury and thus be actionable under Scots private law. The 2009 Act was passed in response to the House of Lords’ decision in the English case of Rothwell v Chemical Insulating Co Ltd (2008) which held that such damages were not recoverable. The insurers claimed that the 2009 Act breached Protocol 1, Art 1 of the European Convention on Human Rights and that in reversing the decision in Rothwell, the new legislation was irrational at common law. The Supreme Court ultimately held on appeal that the 2009 Act was not invalid on either ground and dealt with the key issue of the relationship between the courts and the Scottish Parliament. The decision ultimately affirmed that Acts of the Scottish Parliament are subject to review by the courts since, under the Scotland Act 1998, the courts have the power to strike down legislation passed by the Scottish Parliament which is ultra vires or outwith the scope of its legislative competence. However, in Axa, the Supreme Court also stated that the Scottish Parliament is a democratically elected body and accountable to its people. Accordingly the court would afford it a very broad margin of appreciation and deference in passing legislation. Ultimately, it is for the elected and accountable Scottish Parliament, as opposed to judges, to decide what constitutes rational social policy. This important decision deals with the rather thorny issue of the subordinate nature of Acts of the Scottish Parliament and gives welcome clarification to the effect that they will be treated with almost the same level of respect and deference as Acts of the Westminster Parliament. So far, there has not been a successful challenge to the validity of an Act of the Scottish Parliament.

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Public Participation Meaningful participation by the people of Scotland in the work of the Scottish Parliament was seen by its founders as a key element in the operation of the Parliament. The Parliament and its committees almost always meet in public and there is a fairly large public gallery. Consultation on Bill proposals also allows for participation by members of the public. In particular, to enable members of the public to bring issues to the attention of the Parliament, a Public Petitions Committee has been established as a mandatory committee. The members decide whether a petition is admissible and, if so, can refer the petition to the Scottish Ministers or to the appropriate committee for them to take appropriate action. The Committee has considered hundreds of petitions, covering a wide range of topics including housing, transport, the protection of heritage sites, genetically modified crops and many others. Proceedings of the Parliament and its committees are reported in the Scottish Parliament Official Report and there are also arrangements for broadcasting proceedings. The Scottish Parliament also has a website where current information may be obtained. See http://www.scottish. parliament.uk/home.htm.

Essential Facts • The Scottish Parliament was established in 1999, by the Scotland Act 1998. • The Scottish Parliament is elected by the form of proportional representation known as the Additional Member System. • The rules relating to the rights to vote and to stand for election to the Scottish Parliament are similar to those for the UK Parliament but include members of the House of Lords and EU citizens resident in Scotland. • The UK Parliament has devolved certain law-making powers to the Scottish Parliament, but the Scottish Parliament cannot make law in the areas which the UK Parliament has reserved to itself. • The Scottish Parliament has the power to increase or decrease the basic rate of income tax paid by Scottish taxpayers by a maximum of 3 pence in the pound. • The role of committees in the Scottish Parliament is more significant than the role of committees in the UK Parliament.

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Essential Cases Starrs v Ruxton (2000): this concerned the removal of temporary sheriffs from the Bench in Scotland. Article 6(1) of the ECHR guarantees “a fair and public hearing . . . before an independent and impartial tribunal established by law”. A temporary sheriff on a short-term contract was not independent or impartial, as he could be influenced in his decision-making by the desire to avoid unpopularity with the Lord Advocate. Anderson v Scottish Ministers (2003): an unsuccessful challenge to the compatibility of s 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 with  Art 5 ECHR (concerning the right to liberty) and that it was therefore outside the legislative competence of the Scottish Parliament. Adams and Others v Scottish Ministers (2004): an unsuccessful challenge that the Protection of Wild Mammals (Scotland) Act 2002 breached Art 8 ECHR (respect for private and family life) and Art 11 (right to freedom of peaceful assembly and association with others) and was therefore outside the legislative competence of the Scottish Parliament. Axa General Insurance Ltd v Lord Advocate (2011): clarifies that the courts will normally be unwilling to strike down Acts of Scottish Parliament as they have been made by a democratically elected body accountable to the Scottish people.

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9 the scottish GOVERNMENT The establishment of the Scottish Parliament has given Scotland not only a legislature, but also a Government which can take executive action over the whole range of devolved functions. The Scotland Act 1998 describes it as the “Scottish Administration” but it was generally known as the “Scottish Executive” until 2012 when it was formally renamed the “Scottish Government”. Rather confusingly, the term “Scottish Executive” is also used to describe the civil servants who provide support to the Scottish Government. When the term is used of the Scottish Government, the Scottish Executive consists of the First Minister, the Scottish Ministers and the Scottish Law Officers. The rules for the appointment of the First Minister and the other Scottish Ministers are to be found in the Scotland Act 1998. This is in sharp contrast to the rules for the appointment of the Prime Minister and the Ministers in the UK Government which are unwritten and based on convention. THE FIRST MINISTER The First Minister is the equivalent of the Prime Minister in the Scottish Parliament. He/she is formally appointed by the Queen from among the MSPs within 28 days of a General Election and holds office “during Her Majesty’s pleasure”. Theoretically, this means that the First Minister could be dismissed by the Queen for good reason or for none. In practice, the First Minister holds office for as long as he/she can command the support of a majority of the MSPs. Therefore the person appointed as First Minister is normally the leader of the party which has won the largest number of seats. The 28-day period referred to above is to allow the party leaders time to attempt to form a government, a coalition government (or opt for a minority government) and decide on a First Minister. Failure to do so within the 28 days would lead to another General Election, which would be unpopular with the electorate, and this time limit therefore puts pressure on the various parties to come to an agreement as to which party or parties should form the Government, if no party has won an outright majority of seats. In the elections of 1999 and 2003, the Labour Party won the largest number of seats, but not a clear majority, and on each occasion a coalition was formed between the Labour and Liberal Democrat Parties. In May

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2007, the Scottish National Party won 47 of the 129 seats and the Labour Party won 46. None of the other parties was prepared to enter into a coalition agreement with either of these parties and the SNP, as the largest party, decided to form a minority government. The Scottish Parliament agreed to appoint Alex Salmond, their leader, as First Minister. This took place 14 days after the election. In 2011, the SNP won an outright majority of 65 out of 129 and Alex Salmond was re-appointed. The person who is to be First Minister has to be nominated by an MSP, in writing to the Presiding Officer and the nomination seconded by another MSP. If there is more than one candidate, there is a vote or series of votes until one single candidate emerges who has the support of the majority of MSPs voting. The Presiding Officer recommends the successful candidate to the Queen and the Queen appoints the candidate. If the office of First Minister falls vacant, a new First Minister must be nominated for appointment within 28 days of the post falling vacant, otherwise an extraordinary Scottish General Election must be held. SCOTTISH MINISTERS The First Minister appoints a team of Scottish Ministers from among the Members of the Scottish Parliament. The Scottish Ministers are appointed with the Queen’s approval but the First Minister must obtain the agreement of the Scottish Parliament to the nominations before submitting names to the Queen. This is different from the procedure at Westminster, where the Prime Minister can recommend to the Queen the appointment of whomsoever he wishes to ministerial office, subject, of course, to political considerations, without having to secure the agreement of Parliament. The MSPs can reject, but not substitute, the names of particular individuals in the First Minister’s list. The allocation of portfolios to Ministers is a decision for the First Minister alone, subject to negotiation with the coalition partners (if any). The Scottish Ministers, like the First Minister, hold office at Her Majesty’s pleasure. They may be removed from office by the First Minister and must resign if they lose the confidence of the Parliament. In addition to the oath of allegiance to the Queen which all members of the Scottish Parliament must take on election, members of the Scottish Government must take another oath, as follows: “I swear that I will well and truly serve Her Majesty Queen Elizabeth in the office of Scottish Minister”. The number of Ministers appointed to the Scottish Executive was about 10 under the Labour/Liberal Democrat coalitions of 1999 and 2003, compared with the 20 or so Ministers appointed to the UK Cabinet.

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However, the First Minister of the SNP minority Government of 2007 appointed only five Ministers to the Cabinet and re-named them “Cabinet Secretaries”. In 2011, seven Cabinet Secretaries were appointed. By 2015, the number of Cabinet Secretaries had risen to 9, including a Deputy First Minister. JUNIOR SCOTTISH MINISTERS The First Minister may also appoint Junior Scottish Ministers. Technically, they are not members of the Scottish Executive as defined in the Scotland Act 1998, although they are generally considered as such. They are appointed in the same way as Scottish Ministers. With the agreement of the Parliament, the First Minister recommends their appointment to the Queen. They too hold office at Her Majesty’s pleasure, may be removed from office by the First Minister, may resign at any time and must do so if the Scottish Government loses the confidence of the Scottish Parliament. Their salaries as well as their rank are below those of full Scottish Ministers. The number of Junior Scottish Ministers appointed in May 2007 was 10, 11 in 2011 and 13 in 2015. THE SCOTTISH LAW OFFICERS There are two Scottish Law Officers, namely the Lord Advocate and the Solicitor General, both of whom act as the senior legal advisers to the Scottish Executive. They, too, are members of the Scottish Government. In other words, they are political appointments. The Lord Advocate is also the head of the system of criminal prosecution and investigation of deaths in Scotland and must act independently in those capacities. Unlike the other Scottish Ministers, the Scottish Law Officers do not have to be Members of the Scottish Parliament and none of the Lords Advocate or Solicitors General, since the inception of the Scottish Parliament in 1999, have been elected members of the Scottish Parliament. In fact, they may not even be members of any political party, let alone the one(s) forming the Scottish Government. The reason for this is that they must be legally qualified and it may not be possible to find two MSPs who have the appropriate qualifications. They are appointed in the same way as Scottish Ministers are, with the approval of the Scottish Parliament. They can participate in the proceedings of the Parliament and its committees, but cannot vote. There are several provisions in the Scotland Act 1998 which are designed to protect the independence of the Lord Advocate from

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interference. For example, it is outwith the competence of the Scottish Parliament to pass an Act to remove the Lord Advocate from the position as head of the systems of criminal prosecution and investigation of deaths in Scotland. As a member of the Scottish Government, the Lord Advocate originally had a seat in the Scottish Cabinet. This came in for a certain amount of criticism, on the basis that this could be seen to undermine the independence of the post. As a result of such criticism, in 2000, the Lord Advocate gave up the right to vote in the Cabinet but remained a member of the Scottish Government. Following the election in 2007, the newly elected SNP First Minister took the unusual step of re-appointing the Lord Advocate who had been appointed by the previous Labour/Liberal Democrat administration. However, it was decided that she should not be a member of the Cabinet. This further protects the political independence of the post. MOTIONS OF NO CONFIDENCE It is a convention of the UK constitution that the Prime Minister and his Ministers must resign if they lose a motion of no confidence passed by Parliament. In the case of the Scottish Parliament, this is now statutory and the Scotland Act 1998 lays out the procedure in some detail. Any MSP may move a motion of no confidence, but must have the support of at least 25 other MSPs. Only a simple majority of those voting is required for the motion to be passed. If a new First Minister is not appointed within 28 days, an extraordinary General Election must be held. THE CIVIL SERVICE The Scottish Ministers may appoint such staff as they consider appropriate. These are known as civil servants. However, these civil servants remain part of the UK Home Civil Service. This preserves their career structure in the UK and ensures unified terms and conditions of service. The head of the Civil Service is called the Permanent Secretary. Until 2007, the officers in the Scottish Executive under the Permanent Secretary were allocated to six major departments, each led by a Head of Department. However, following the election of 2007, the management structure of the Scottish Executive was reorganised. The Heads of Department were replaced by 5, now 6, Directors-General. The Directorates cover: Finance; Health and Social Care; Learning and Justice;

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Enterprise, Environment and Innovation; Communities; Strategy and External Affairs. As with the UK Government, the Scottish Government has set up some Executive Agencies. There are currently 8 of them and include the Scottish Prison Service and Transport Scotland. There are two nonministerial departments, the General Register Office for Scotland and the Office of the Scottish Charity Regulator. There is also a large number of non-departmental bodies and other public bodies. There is also a Strategic Board which consists of the Permanent Secretary and the Directors-General who form the Civil Service “top table” of advisers for Scottish Ministers.

Essential Facts • When the term is used of the Scottish Government, the “Scottish Executive” consists of the First Minister, the Scottish Ministers and the Scottish Law Officers. Confusingly, the term is also used to describe the civil servants who support the Scottish Government. • The First Minister is the equivalent of the Prime Minister in the Scottish Parliament. He or she is appointed by the Queen from among the MSPs within 28 days of a General Election and holds office “during Her Majesty’s pleasure”. • The First Minister appoints a team of Scottish Ministers from among the Members of the Scottish Parliament. The Scottish Ministers are appointed with the Queen’s approval but the First Minister must obtain the agreement of the Scottish Parliament to the nominations before submitting names to the Queen. • The First Minister may also appoint Junior Scottish Ministers. Technically, they are not members of the Scottish Executive as defined in the Scotland Act 1998, although they are generally considered as such. They are appointed in the same way as Scottish Ministers. • There are two Scottish Law Officers, namely the Lord Advocate and the Solicitor General, both of whom act as the senior legal advisers to the Scottish Executive.They are members of the Scottish Government.The Lord Advocate is also the head of the system of criminal prosecution and investigation of deaths in Scotland and must act independently in those capacities.

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• The Scottish Ministers may appoint such staff as they consider appropriate. These are known as civil servants. However, these civil servants remain part of the UK Home Civil Service.This preserves their career structure in the UK and ensures unified terms and conditions of service.

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judicial review

Judicial review refers to the inherent common law power of the Court of Session to review or supervise acts or omissions of administrative bodies. This is known as the supervisory jurisdiction of the Court of Session, and the court has had this power since it was first established in 1532. The supervisory jurisdiction was fully expounded by Lord Shaw in Moss Empires v Assessor for Glasgow (1917): “It is within the jurisdiction of the Court of Session to keep inferior judicatories and administrative bodies right, in the sense of compelling them to keep within the limits of their statutory powers . . . but it is not within the power or function of the Court of Session itself to do the work set by the legislator to be performed by those administrative bodies or inferior judicatories themselves.”

Thus, the Court of Session has the power to ensure that administrative and other bodies act lawfully. But since Parliament has entrusted the administrative bodies to carry out certain functions, the court cannot intervene just because a wrong decision has been made, or one that the court would not have made. The judicial review process is confined to whether the administrative body’s decision was wrong in law, not with the merits of the decision, as in Guthrie v Miller (1827), where, under a local Police Act, commissioners of police were entrusted with the discretion to provide lighting in public streets. Guthrie claimed in the Court of Session that the commissioners were failing in their duty. The question at issue was whether a lamp-post was necessary at a particular spot. The court refused to become involved in the question, on the ground that this would involve deciding whether lamp-posts should be on every street corner. That was a question of fact to be decided by the local authority and there was no question of law to be judicially reviewed by the court. SCOPE OF JUDICIAL REVIEW Unlike in England and Wales, judicial review in Scotland does not favour a strict public/private law approach, as is discussed by Lord Hope in the leading decision of West v Secretary of State for Scotland (1992): “The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any

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person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument . . . The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review . . . as a public law remedy.”

This is significantly different from the approach taken by the English courts, where the decision on the competency of a review petition is often based upon whether the issue has a sufficient public law element (O’Reilly v Mackman (1983)). However, in Scotland, review is not confined to the statutory powers of administrative bodies. It is clear from authority that the supervisory jurisdiction may also extend to the actions and omissions of bodies which are clearly “private” in nature: for example, in McDonald v Burns (1940), where the Church expelled two nuns from a convent, and in St Johnstone FC v Scottish Football Association (1965), where the SFA fined St Johnstone Football Club. The common characteristic in such cases is not the nature of the body, but the entrusting to it of a decisionmaking power or duty. This was illustrated by Lord Hope in West through the tri-partite relationship which he offers as a useful indicator for distinguishing reviewable circumstances from those that are purely contractual obligations.

Diagram 1: Tri-partite relationship

Delegating person or body

Person or body to whom power is delegated

Person(s) affected by use of delegated power

However, Lord Hope’s remarks on the tri-partite relationship have been viewed by some as slightly anomalous. In the cases of Naik v University of Stirling (1994) and Joobeen v University of Stirling (1995), the application of the tri-partite “test” led to markedly different results even when based

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upon identical facts. In both cases, students had been expelled from Stirling University for non-payment of fees, yet in Naik the circumstances were held to be reviewable while in Joobeen they were not. In Naik, Lord MacLean considered that there was a tri-partite relationship since powers to discipline students were granted to the University by Royal Charter. He did, however, criticise the tri-partite relationship and was uncomfortable with its use as a “test” in all cases. Conversely, in Joobeen, Lord Prosser held that the University was entitled to expel a student for non-payment of fees since this was in essence a contractual relationship and not subject to judicial review. Due to such confusion, the test has subsequently evolved today into an indicator of the competency of proceedings only in relation to particular disputes concerning contracts and employment matters. It is by no means a test which should be applied in all cases of judicial review and is certainly not a judicial “hurdle”. TITLE AND INTEREST TO SUE It is a general principle of Scots law that a litigant must satisfy the Court of Session not only that they are the proper person to pursue the particular proceedings (entitled), but also that they have sufficient interest in the outcome of the proceedings. If an applicant fails to satisfy the court, this means that there is no dispute between the parties which is capable of being settled by judicial review. The question of title and interest is a separate and logically prior question which must be settled before a case proceeds. The concept was succinctly framed by Lord Dunedin in D & J Nicol v Dundee Harbour Trs (1915): “… I think it may fairly be said that for a person to have such a title, he must be a party (using the word in the widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies.” In that case, the pursuers were held to have title, not only as harbour ratepayers, but also as electors of the trustees by virtue of Act of Parliament. Similarly, in Black v Tennant (1899) Lord Guest held that neighbouring proprietors had title to sue to reduce an invalid grant of a public house licence since they had a statutory right to object to the licensing board on the grant of a licence. Thus it is clear that title to sue can be created through a statutory relationship. However, where a statute is drawn more specifically, those persons outside its scope will be denied title to sue despite having a sufficient interest, as in Glasgow Rape Crisis Centre v Home Secretary (2000) where it was held that the Crisis Centre had no title to sue

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since the decision of awarding a convicted rapist an entry visa was a matter solely between the Home Secretary and the applicant. In cases where there is no direct statutory relationship, title to sue can often be based upon a common public right known as an actio popularis. This is based upon the principle that some rights are of such a public nature that any member of the public may have title and interest to enforce them. Actio popularis has applied in relation to public rights of way ( Jenkins v Robertson (1867)) and rights to use land for recreation (Home v Young (1846)). How far public interest extends, however, has been doubted in the case of Wilson v IBA (1979) which dealt with the issue of television viewers and electors having the right to enforce a duty against the IBA when it had failed to be politically impartial during a referendum. The question left unanswered in this case was whether any member of the public should have title to sue, or whether a more direct or personal involvement would have to be shown. The concept of sufficient interest was expounded by Lord Inglis in Strang v Stewart (1864) as: “. . . if there be a pecuniary or a patrimonial interest, however small, depending on the determination of the question, the parties have the right to involve the aid of a court of law to resolve their difference.” However, the Court has moved away from an insistence on the presence of pecuniary interest and, provided that there is title, interest need be neither pecuniary nor large (Gunstone v Scottish Women’s Amateur Athletic Association (1987)). Whether a “pressure group” has sufficient interest in the pursuance of the rights of a member of the public has been doubtful under Scots law. In the leading case of Scottish Old People’s Welfare Council, Petrs (1987), Age Concern Scotland, on behalf of the elderly, challenged the legality of a government circular which issued guidance on extra payments for severe weather conditions. It was held by Lord Clyde that the interest of the petitioners was too remote. Age Concern was an organisation furthering the interests of elderly people but its own membership did not consist of potential claimants who would directly benefit from a favourable decision. This is a markedly different stance from that in England and Wales, where pressure groups regularly petition for review on behalf of members of the public (R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd (1998)). Thus, the approach of having sufficient interest in Scotland can often place litigants at a disadvantage. In practice, pressure groups have always been able to fund and provide the means for an individual to raise a petition in Scotland, even if they do not front the actual case. In the recent decision of Axa General Insurance Ltd v Lord Advocate (2011),

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insurance companies challenged the validity of the Damages (Asbestosrelated) (Scotland) Act 2009. Under the Act, conditions such as pleural plaques and other asbestos-related conditions can constitute personal injury and thus be actionable under Scots private law. In reality this meant that insurance companies who had sought to indemnify employers against previous asbestos claims were liable to pay for these new categories of injury. It was argued that Axa did not have sufficient title and interest in respect of the legal challenge. However, this was rejected by the Court of Session since it would be the insurance companies who would in practice bear the costs of any actions pursued under the 2009 Act. The court also noted that a broad approach to questions of title should be taken in areas of public law and where individual members of the public are adversely affected by legislation, they are entitled to challenge it, provided that they can qualify interest to do so. SUBSTANTIVE GROUNDS OF CHALLENGE The law relating to the grounds of challenge for judicial review is ever evolving. This is because the law is based almost wholly upon precedent, with very little legislative input. This has allowed the law to develop in a flexible manner, dealing with each case based upon its own unique circumstances. The grounds of challenge have been developed by the courts over many years; however, the most modern authoritative statement on the grounds can be found in the decision of Council of Civil Service Unions v Minister for Civil Service (1985). In that case, Lord Diplock set out his famous catalogue of grounds of challenge: “. . . one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ’illegality’, the second ’irrationality’, and the third ’procedural impropriety’.” In creating these categories, Lord Diplock did not intend them to be interpreted rigidly. He stated that they would be subject to future expansion and, indeed, he already spoke at this stage about the introduction of a possible fourth ground of challenge in the European principle of “proportionality”. Illegality Almost all the powers and duties which public bodies possess are statutory, conferred by Act of Parliament or statutory instrument. So the limits of public powers and the extent of public duties are those which statute imposes or grants. Illegality is a central principle of administrative law

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and can be stated quite simply: a person or body acting under statutory powers can do only those things which statute permits. If a public body exercises its powers without statutory authorisation, then that action will be illegal or ultra vires (beyond the powers). The ultra vires doctrine is clearly illustrated in McColl v Strathclyde RC (1983) where the council was held to have acted ultra vires in attempting to add fluoride to the public water supply. The statutory powers of the council in this area came from the Water (Scotland) Act 1980 which allowed local authorities to provide a “wholesome” water supply. Since the fluoride was to be added to improve dental health, and not for wholesomeness, the actions were illegal. There are a number of other aspects of illegality which are different from the simple application of ultra vires. Each of these must be examined in some detail in order to gain a fuller understanding of illegality as a ground of challenge. Error of law There is a difference between Scots law and English law in the matter of error of law. In England, it is a ground of challenge that an administrative body has made an error of law; however, in Scotland, this is not the case. The court can intervene and quash a decision only if it is ultra vires. However, if an administrative body acts within the remit of its powers, but in doing so has only made an error of law, then it has made an error of law within its jurisdiction. In such a case, the Scottish courts have no power to intervene. The reasoning for this is that if Parliament has given a body power to deal with certain matters, according to theory, Parliament must have intended that the statutory body should have the power to make not only legally correct decisions, but also decisions which go wrong in law. The leading case is Watt v Lord Advocate (1979) where a man had been laid off work for 3 weeks following a work to rule in which he had not participated. The question to be decided was whether he was “directly interested” in the industrial action. If he was, he would not be entitled to unemployment benefit. The case went to the National Insurance Commissioner who decided Watt was directly interested. In the Outer House of the Court of Session, Lord Dunpark refused to intervene, concluding that the decision was within the Commissioner’s power, even if it was wrong in law. On a further appeal, however, the Inner House overturned the decision, holding that the question raised a point of law and that the National Insurance Commissioner had stepped outside his power and acted ultra vires. He had not merely misinterpreted the law in attempting to answer the right question: he had, in fact, asked the wrong question.

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Thus, in Scotland, if a body makes an error of law which is not ultra vires, the Court of Session will not be able to correct the error. The lack of a remedy is not, however, as important as it might seem, for two reasons. First, from many tribunals and statutory bodies, there is an appeal to the courts provided by statute on a question of law. Second, the courts are likely, as the Watt decision perhaps illustrates, to say that any serious error of law takes the decision-making body outwith its power. Relevant considerations When an administrative body is entrusted with a power, it is implicit that the power must be exercised taking into account all relevant considerations and excluding irrelevant ones. To say what factors are relevant in any particular case can be difficult, especially when the factors are not expressly laid down in statute. Thus, each case must be judged on its own circumstances. In Roberts v Hopwood (1925), a political decision on sex equality was held to be an irrelevant consideration. Poplar Borough Council had the power to pay its employees “such wages as the council think fit”. It decided to pay £4 a week to all employees (including females), which was substantially more than the national average. The District Auditor disallowed this as being contrary to law. On appeal, the House of Lords held that the council had been guided by irrelevant considerations and had used its power for an improper purpose, ie to achieve equality in wages. It had not allowed itself to be guided by relevant considerations such as the cost of living, and wages paid by national bodies and other local authorities. In Macfarlane v Glasgow Licensing Board (1971), the Betting, Gaming and Lotteries Act 1963 stated that a licensing authority could refuse to renew a betting licence on the ground that premises had not been properly conducted. Schedule 4 to the 1963 Act continued to illustrate what constituted proper conduct. In this case, a customer had been refused payment of winnings because the bookmaker had lost the betting slip and so an objection to the renewal of the licence was lodged. Based upon the objection, the local authority refused renewal. It was held by the sheriff that the non-payment was an irrelevant consideration. It was not one of the matters relating to proper conduct specified in the statute. The Act made clear that relevant considerations were issues such as allowing under-age persons on the premises and restrictions on showing television, none of which had been considered. In R v Ealing LBC, ex parte Times Newspapers (1986) where the publishers of The Times were involved in a bitter industrial dispute with

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former employees. In response to a call by the trade unions involved, Ealing Council barred from its libraries all copies of newspapers published by Times Newspapers Ltd. These publications had been part of the library service prior to the ban. The court held that the reason for the ban was that it could be used as a weapon in an industrial dispute. It was therefore not within the council’s powers relating to libraries, and the dispute was an irrelevant consideration. A final example of irrelevant considerations can be seen in R v Somerset CC, ex parte Fewings (1995) where the local authority decided to ban stag hunting on land designated for recreational purposes since it had an ethical and moral objection to the activity. It was held that the council’s distaste and ethical objection was an irrelevant consideration to be taken into account and that the council’s mind ought to have been directed to relevant statutory provisions. Improper purpose A principle of the use of statutory powers is that they must be used for the purpose for which they are granted. This concept is closely related to that of relevant considerations. In Rossi v Edinburgh Corp (1903), icecream sellers had to be licensed under statute by the corporation. The statute in question made it an offence to sell ice-cream outside the hours of 8 am and 11 pm. The corporation proposed to insert clauses into the licences to the effect that the premises to which the licence related should not be kept open before 8 am or after 11 pm. The House of Lords held that the clauses were ultra vires since the statute did not give the corporation the power to regulate the opening of shops, only the sale of ice-cream. Similarly, in Chertsey UDC v Mixnam’s Properties Ltd (1964), under the Caravan Sites and Control of Development Act 1964, the council was responsible for licensing caravan sites. It was empowered to impose such conditions as it thought necessary or desirable on the occupier of the land. The council issued a licence subject to conditions that caravan occupiers should have security of tenure, that there was to be no restriction on the caravaners as to from whom they might buy goods, or on the formation of a tenants’ association. All the conditions were subsequently held to be ultra vires since the Act was concerned with the licensing of land as a caravan site, and so it permitted conditions which related to the use of the site. It did not permit conditions which attempted to regulate the contracts between the site operator and the caravan occupants.

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Improper delegation The courts hold a presumption that a person or body entrusted with a power should not sub-delegate the exercise of the power to another. This principle is embodied in the Latin maxim delegatus non potest delegare – a delegate does not have the power to sub-delegate. This principle is not absolute, however, and delegation may be possible in certain circumstances. In Vine v National Dock Labour Board (1957), the House of Lords held that, in deciding whether a power to delegate is lawful, one has to consider the nature of the duty in question and the character of the person on whom it is put. In the case of an exercise of disciplinary powers, the House was clear that they could not be delegated. It is accepted that where powers are granted to a Government Minister, they may be validly exercised by officials of the Minister’s department. Only when a statute expressly states that a power must be exercised personally will sub-delegation be unlawful (Lavender & Son v Minister for Housing and Local Government (1970)). Fettering discretion Often, questions can arise as to whether a public authority can limit or restrict the exercise of its own powers – in effect, decide that it is not going to exercise its powers. This is known as fettering discretion and may be unlawful. (1)  By a self-imposed rule Authorities which have a statutory discretion to do something are entitled to adopt a policy by which the exercise of the discretion will in future be determined. But a body given discretion must not completely disable itself from exercising that discretion. In the leading case of R v Port of London Authority, ex parte Kynoch (1919), the authority had a statutory power to construct docks. Other bodies were also empowered to apply to the authority for a licence to construct docks. The authority adopted the policy of not granting a licence for something which was within its own statutory powers of provision and so Kynoch was refused a licence. Lord Justice Bankes held that if a body had passed a rule or come to a decision not to hear any application of a particular nature, no matter who makes it, then this was unlawful. The authority was refusing to exercise a power given to it by Parliament, a power which Parliament must have intended it to use. If, on the other hand, a public body, in the exercise of its discretion, has adopted a general policy but is prepared to consider an application which is contrary to the policy and tells the applicant what the policy is, then, after hearing the application and considering it, it may refuse the application. In

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such circumstances the exercise of discretion is not wholly excluded even though there is a strong disposition to decide in accordance with the policy. In R v Criminal Injuries Compensation Board, ex parte RJC (1978), the Compensation Board rejected an application based upon the self-imposed rule that a member of a gang injured in a gang fight would not receive an award. This decision was invalidated since, by applying that rule, the Board had fettered its discretion and disabled itself from considering on its merits the application of such a gang member, whereas the scheme required every case to be decided on its own merits. In R v Chief Constable of North Wales Police, ex parte AB (1997), it was held that the policy of the North Wales police to disclose information on paedophiles to the public was not unlawful. A married couple who had been convicted of serious sexual offences against children sought judicial review of the policy. The court recognised that good public administration would dictate that damaging information about individuals would not be released into the community unless there was sound justification for doing so. The police had not adopted a blanket policy of disclosure but had carefully considered the case on its merits and so had not fettered their discretion. (2)  By agreement or contract It is clear that an administrative body on which a power is conferred by statute or by common law cannot disable itself, by agreement or contract, from exercising that power. The leading authority in this area is Ayr Harbour Trs v Oswald (1883). Under the Ayr Harbour Act 1879, the Harbour Trustees had power to acquire land and could use such land for the erection of buildings, among other things. They entered into an agreement with the former owner of a piece of land that they would not obstruct his use of it for access to the harbour, ie they would not erect buildings or otherwise restrict his access. This contract was held to be ultra vires in that it fettered their future power to build on that particular land. The power had been conferred by Parliament for the public good and the right to exercise that power should not be restricted in any way. Similarly, in Stringer v Minister for Housing and Local Government (1971), Cheshire County Council made an agreement with Manchester University that it would not permit development which would interfere with the operation of the university’s telescope at Jodrell Bank. However, the Town and Country Planning Act 1962 stated that, in considering any application for planning permission, the planning authority had to take into account all material considerations, ie relevant factors. The council subsequently received an application to build in the area and refused it on the basis of the agreement. It was held that the authority had disabled itself

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from taking account of all the relevant factors and that the agreement was therefore ultra vires. Irrationality and proportionality Irrationality, as Lord Diplock expressed in the Council of Civil Service Unions case, is to be understood as Wednesbury unreasonableness. The concept of Wednesbury unreasonableness emanates from the celebrated case of Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) which did not purport to create new law but consolidated some already established points. In Wednesbury, the corporation had a statutory power to permit Sunday openings of cinemas “subject to such conditions as the authority thinks fit to impose”. Wednesbury gave the plaintiff permission to open, subject to the condition that no children under 15 should be admitted, even if accompanied by an adult. The plaintiff sought a declaration from the court that the condition was ultra vires. In his judgment, Lord Greene emphasised two points: that the statute had given local authorities an unlimited power to impose conditions, and that it did not provide an appeal from the authority’s decision on any ground. He then went on to consider to what extent the decision might be said to be “unreasonable”: “. . . there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact all these things run into one another.”

In Wednesbury, it was quite clear that the subject-matter dealt with by the condition was a matter a reasonable authority would be justified in considering when deciding what condition to attach to the licence. Indeed, the plaintiff did not argue that the council had taken an irrelevant matter into account, but that the decision was unreasonable, treating that as an independent ground of challenge. Lord Greene said that even where an authority has observed the relevancy rules, a decision may still be unreasonable when the authority has come to a conclusion so unreasonable that no reasonable decision-maker could ever come to it. However, the threshold of unreasonableness necessary to warrant judicial intervention was, and still is to some extent, pitched at an exceptionally high level. Thus, in returning to the facts before him, Lord Greene said that to prove a case of that kind would require something overwhelming and, in the case of Wednesbury, the facts did not come anywhere near the threshold level.

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This unusually high threshold reflects the traditional reluctance of the courts to involve themselves in questioning the merits of discretionary decision-making. Indeed, given the constitutional position of the courts, a judge is on dangerous ground in striking down as unreasonable the decision of a statutory authority on a matter given to it for decision by Act of Parliament. This creates a situation whereby the judge substitutes his view on the merits for that of the authority, leading inevitably to claims of “gouvernement des juges”. However, with the arrival of the Human Rights Act 1998, the concept of unreasonableness has undergone a degree of adjustment. In the Council of Civil Service Unions case, Lord Diplock referred to the possible acceptance of proportionality into UK law. At this time, proportionality was well established in the jurisprudence of mainland Europe and, although absent as a separate ground of challenge under judicial review in the UK, elements of it could be traced in many decisions (Roberts v Hopwood (1925); and R v Barnsley MBC, ex parte Hook (1976)). In R v Ministry of Defence, ex parte Smith (1996), Lord Bingham stated that: “. . . in judging whether the decision maker has exceeded this margin of appreciation, the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decisions are reasonable . . .” Thus, the European principle of proportionality has begun to alter the way in which unreasonableness is dealt with by the courts. The introduction of proportionality provides a more rigorous approach to judicial review and involves the court examining the relationship between administrative means and ends. It must examine the level of weight attached by the decision-maker to specific rights and considerations and assess whether the correct balance has been struck. In essence, proportionality is a much less subjective test than that of unreasonableness and attempts to soften the high threshold. Proportionality should, however, be viewed with caution, since it has not replaced the Wednesbury standard of unreasonableness but has merely resulted in an adjustment to the law. The test of proportionality is only engaged in cases where Convention and fundamental rights are involved – in all other circumstances, the domestic law remains the same (R (Association of British Civilian Internees – Far Eastern Region) v Secretary of State for Defence (2003)). Thus, the concept of proportionality has been incorporated into Wednesbury unreasonableness but, for the time being, has not replaced it.

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Procedural impropriety In its strict sense, this is a different aspect of ultra vires and involves situations where there has been a failure to follow prescribed procedures. This is known as procedural ultra vires. However, in a broader sense, procedural impropriety incorporates the rules of natural justice, ie the rule against bias, and the right to a fair hearing. When there has been breach of the rules of natural justice then the courts may interfere with a decision based upon procedural impropriety. The concept of natural justice is dealt with in the following chapter of this book, therefore this section is restricted to an examination of procedural ultra vires. Legislation relating to the activities of public bodies specifies a great number of procedural requirements. It covers such things as time limits for the service of notices, rights of appeal, and the giving of reasons for decisions, among many others. Where statute lays down statutory requirements, it does not generally specify the consequences that follow from non-compliance, ie it does not generally say whether failure to comply with the legislative procedures invalidates the action or not. Thus, it is almost entirely up to the courts in each case to decide on the issue. However, the courts have shown themselves reluctant to lay down firm rules on this matter and consequently the law has become somewhat fragmented. For example, the fact that a statute uses the word “shall” in relation to certain statutory requirements does not necessarily mean that failure to follow procedure necessarily invalidates the action. Broadly, the courts have to decide whether the requirements are mandatory and must be followed, otherwise the action will be invalidated; or directive, where failure to follow does not automatically invalidate. However, this distinction has not been without difficulty and in London and Clydeside Estates v Aberdeen DC (1980), the distinction was held to be too prescriptive by Lord Hailsham who stressed the importance of dealing with each procedural requirement on a case-by-case-basis. Consequently, it is difficult to forecast how the courts will treat a particular requirement, but a few generalisations may be made:

(1) if an administrative requirement imposes some financial burden on a citizen, it is likely that the requirement is mandatory and must be strictly complied with (Moss Empires v Assessor for Glasgow (1917)); (2) if a failure in procedure has an adverse effect on a person’s property rights, it is likely that the adherence to the procedure is mandatory (Eldon Garages Ltd v Kingston-upon-Hull CBC (1974)); (3) a failure to comply with a requirement to make an investigation or to carry out a consultation before making a decision that may

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affect a citizen is likely to invalidate any decision (Grunwick Processing Laboratories Ltd v ACAS (1978)); (4) where there is a duty to consult, a failure to give those consulted an adequate opportunity to express their views is likely to invalidate a decision (Lee v Secretary of State for Education and Science (1968)); and (5) where a statute gives a right of appeal against a decision, procedures for informing citizens of that right are likely to be mandatory (London and Clydeside Estates v Aberdeen DC (1980)).

REMEDIES Under Scots law, the three most important remedies are reduction, declarator and interdict. Each of these remedies has been long established, however, a new, simplified procedure for their use came into force in 1985, following the recommendations of the Dunpark Committee. Where an application for exercise of the court’s supervisory jurisdiction is made, the court may make such order in relation to the offending decision as it sees fit, whether or not such an order was sought in the application; in other words, an application will not fail if it covers one specific remedy but it should have specified another. If appropriate, the correct remedy will be granted. The Court of Session is reasonably flexible, and all three remedies may be sought in the same case, as well as damages. Reduction Utilising this remedy, the court may rescind, quash or set aside any written document, including the decision of an inferior court, tribunal or other public body. The grounds of reduction include all grounds which may render the document ultra vires (Palmer v Inverness Hospitals Board (1963)). Reduction is a very general remedy, but there are a few limitations placed upon its use: (a) a dismissed employee cannot seek reduction of a notice of dismissal; (b) reduction will not be permitted if a lesser remedy will suffice (British Oxygen Co v South-West Scotland Electricity Board (1956)); (c) reduction is a negative remedy in that another decision cannot be substituted in its place by the court; and (d) reduction will not be granted if there will be no effect on the position of the parties by virtue of the action (Shetland Line v Secretary of State for Scotland (1996)). A person may seek partial reduction of a decision or part of a document, for example that a condition attached to a licence is ultra vires. Partial

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reduction will only be considered when the offending parts of a document or decision can be appropriately severed from the remainder. In Darney v Calder DC (1904), a firm of glue manufacturers sought to set up a business in an area where glue production was considered an “offensive business”; thus, they obtained a conditional licence. The firm sought reduction of this condition as being ultra vires, but it was held that the condition was an inseparable part of the licence, so reduction was incompetent. Declarator The issue of a declarator involves the court declaring the existence of a right. This can be a right of any kind, for example a question of status, and is not entirely confined to administrative law. It can be obtained in either the Court of Session or the sheriff court, although it should be noted that the sheriff court cannot grant a declarator relating to administrative law matters (Brown v Hamilton DC (1983)). The courts will not grant a declarator to settle hypothetical or abstract questions, nor any power entrusted by statute to the exclusive jurisdiction of a specialised tribunal. It may, however, be sought where some future right is in dispute. In Rossi v Edinburgh Corp (1904), Rossi sought a declarator that a proposed licence should not contain prohibitory conditions, such as not selling ice-cream on Sundays. The corporation had not yet tried to enforce the terms of the licence. Rossi could have waited until then, but he chose to take action early, to prevent enforcement of the licence; thus, a future right was being disputed. The court issued the declarator he sought, namely that to grant a licence subject to such conditions would be ultra vires. However, a declarator will not be granted where it can have no practical effect in settling a dispute. In Smith & Griffin v Lord Advocate (1950), the court refused to grant a declarator that Griffin had been a member of the Navy, since the issue in dispute was whether he was entitled to a pension. The court could not grant a declarator because Griffin’s pension entitlement was, by virtue of legislation, a matter subject to ministerial decision. Thus, the matter was not within the jurisdiction of the court. Normally, a declarator is accompanied by an action for enforcement of the right declared. In Baker v Glasgow DC (1981), Baker sought a declarator in order to question the legality of a condition in a taxi licence. He also sought an interdict to have the council ordered not to impose the condition.

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Interdict The purpose of an interdict is to prevent injury to or infringement of any right. It is an order of the court prohibiting the implementation of a decision or the continuance of an action and can be sought in a variety of circumstances, for example to prevent the establishing of a local authority printing service (Graham v Glasgow Corp (1936)); to prevent a local authority supporting a political publication (Meek v Lothian RC (1983)); and to prevent fluoridation of the public water supply (McColl v Strathclyde RC (1983)). When judicial proceedings are pending, an interim interdict may be granted to maintain the status quo until the outcome of those proceedings is known. Whether or not interim interdict is granted will depend on the balance of convenience. In Innes v Royal Burgh of Kirkcaldy (1963), the proposal of the Royal Burgh to reduce council house rents by one-quarter was challenged. The court held that the balance of convenience lay in maintaining the existing level of rents, from the point of view that if the reduction was found to be unlawful, tenants would possibly have to find large sums of money to repay the debt. Interdict is a discretionary remedy. It may be refused even where a proposed action is of doubtful legality, or if there is another competent remedy, such as a statutory penalty or a statutory means of redress. A long delay in taking action or apparent acquiescence in a particular action may lead to an interdict being refused. Interdict may also be excluded when legislation has laid down a system of enforcement, including penalties for breach (Magistrates of Buckhaven and Methil v Wemyss Coal Co (1932)). Remedies provided by statute When Parliament confers powers and duties upon public authorities, it often also provides special procedures for enforcement or appeals or adjudication of disputes. In general, where there is some statutory means of challenging a decision, the Court of Session will require an applicant to resort to that procedure before seeking a remedy; otherwise an action will be dismissed as premature (Nahar v Strathclyde RC (1986)). The adoption of this rule is embodied in the principle that the court should not seek to exercise the discretion of another authority or upset the statutory framework for enforcing the law. The statutory procedures which exist are numerous and there are too many to list definitively. However, examples would include:

(a) the right of appeal by an applicant to the Scottish Ministers on the refusal of a planning permission;

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(b) confirmation of local authority byelaws by the Scottish Ministers; (c) the exercise of a sheriff ’s powers relating to licensing appeals; and (d) an appeal from a tribunal to a superior tribunal, such as from an employment tribunal to the Employment Appeals Tribunal.

Essential Facts • Judicial review is an inherent common law power of the Court of Session in Scotland. • The judicial review process is confined to whether an administrative body’s decision is wrong in law, not with its merits. • The competency of an application for review in Scotland does not depend upon any distinction between public law and private law. • A potential litigant must satisfy the Court of Session that he has title and interest to sue; if an applicant fails to satisfy the court, this means that there is no dispute which is capable of being settled by judicial review. • The substantive grounds of challenge under judicial review are illegality; irrationality (or unreasonableness); procedural impropriety; and, more recently, proportionality. • The most common remedies sought under judicial review are reduction, declarator, and interdict.

Essential Cases Moss Empires v Assessor for Glasgow (1917): definition of the supervisory jurisdiction. Guthrie v Miller (1827): the distinction between law, facts and merits. West v Secretary of State for Scotland (1992): the scope of judicial review; clarification of public/private law distinction. Scottish Old People’s Welfare Council, Petrs (1987): an outline of title and interest to sue. Axa General Insurance Ltd v Lord Advocate (2011): title and interest to sue against Acts of the Scottish Parliament.

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Council of Civil Service Unions v Minister for Civil Service (1985): an outline of the substantive grounds of challenge under judicial review; the Diplock catalogue. McColl v Strathclyde RC (1983): an example of an action of an administrative body being declared ultra vires. Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948): an explanation of “unreasonableness” and the creation of the high-threshold “Wednesbury”-style unreasonableness.

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11 parliamentary ombudsmen Introduction Since the early 19th century, Scandinavian countries have had an official, known as the Ombudsman, whose function is to investigate the grievances of ordinary citizens. The word “ombudsman” itself is Norse in origin and means “commissioner”. The appointment of such a commissioner in the United Kingdom is comparatively recent, dating from the Parliamentary Commissioner for Administration Act 1967. Previously, complaints against government departments would be pursued either by complaining to an MP or by seeking judicial review. Both of these mechanisms are, of course, limited since MPs cannot mount a very effective investigation into the working of government departments, and largely have to limit themselves to asking questions of Ministers in the House of Commons, while judicial review can only be invoked by those with title and interest to sue and is limited to reviewing the legality of the actions. To address these issues, the Whyatt Report on The Citizen and Administration (1961) advocated the creation of an Ombudsman as adopted in the Scandinavian countries. The primary aim of the Ombudsman would be to investigate complaints of maladministration in central government departments. Despite considerable opposition to the concept, the Parliamentary Ombudsman was created by virtue of the Parliamentary Commissioner for Administration Act 1967. The Ombudsman system was further extended in 1972–73 with the establishment of Health Service Commissioners for England, Wales and Scotland and Commissioners for Local Administration or local government ombudsmen were established for England and Wales in 1974 and Scotland in 1975. Subsequent devolution has led to the establishment of separate Ombudsmen for Scotland and Wales. These are known as the Scottish Public Services Ombudsman and the Public Services Ombudsman for Wales respectively. This chapter will examine the role of the UK Parliamentary Ombudsman as well as the Scottish Public Services Ombudsman in more detail. parliamentary and health service ombudsman Constitution, appointment and tenure Today, the Parliamentary and Health Service Ombudsman (the

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Ombudsman) combines the two roles of Parliamentary Commissioner for Administration (the Parliamentary Ombudsman) and Health Service Commissioner for England (the Health Service Ombudsman). Both are statutory roles and their powers are laid out in the Parliamentary Commissioner Act 1967 and the Health Service Commissioners Act 1993. The independence of the Ombudsman from the Executive is protected and the 1967 Act affords a degree of security of tenure. The Ombudsman is appointed by the Crown on the advice of the Prime Minister and holds office during good behaviour subject to a power of removal on address from both Houses of Parliament. Thus, the tenure is similar to that of a High Court judge. The Ombudsman also has a salary fixed by statute; it is chargeable to the Consolidated Fund and carries its own staff, subject to Treasury approval as to numbers and conditions of service. Jurisdiction The primary function of the Ombudsman is to investigate complaints by private citizens that they have suffered injustice as a result of maladministration by government departments and agencies in the UK and the NHS in England. The full list of bodies subject to the jurisdiction of the Ombudsman is listed in Sch 2 to the 1967 Act and s 2 of the 1993 Act and includes all major government departments as well as other non-departmental bodies such as the Arts Council of England and the Commission for Equality and Human Rights. Health Service bodies subject to investigation include Strategic Health Authorities, NHS Trusts, and Primary Care Trusts. The Ombudsman cannot investigate complaints relating to the exercise of legislative functions, such as the preparation or creation of delegated legislation, although he can investigate complaints into the way in which a scheme set up by way of delegated legislation is actually being administered. There are also a number of areas which are outwith the Ombudsman’s jurisdiction. These can be found in Sch 3 to the 1967 Act and include, inter alia, matters certified by a Secretary of State to affect relations between the UK Government and any other Government or international organisation; the commencement of civil or criminal proceedings before any court of law in the UK; action taken in matters relating to contractual or other commercial transactions of government; and action taken in respect of any personnel matters. The Act also states that the Ombudsman may not investigate a matter where the citizen generally has a right of redress before any tribunal or court. Section 4 of the 1993 Act lists matters excluded from the jurisdiction

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of the Health Service Ombudsman. These include matters subject to an inquiry under section 84 of the National Health Service Act 1977, or generally where a right of redress exists before any tribunal or court, unless it is not reasonable to expect a person to seek such redress. As mentioned above, the Ombudsman can only investigate instances of maladministration causing injustice. However, the term “maladministration” is not defined anywhere within the legislation. This has often been criticised by observers of the system. However, this was a deliberate act of the legislature and has allowed the concept to develop unrestricted, on a case-by-case basis. In the Second Reading debate on the Bill preceding the 1967 Act, Richard Crossman MP famously catalogued possible examples of maladministration as bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. Its definition is wide and encompassing, however, it does not generally include the merits of a decision and there must always be an element of injustice present. Making a complaint The Ombudsman cannot instigate an investigation personally but can only respond to complaints received from members of the public. Currently, the Ombudsman is only entitled to investigate complaints made in writing by a Member of the House of Commons at the instance of a member of the public. The public have no direct access to the Ombudsman and must first approach an MP and request that the complaint be forwarded in writing. The MP may, of course, refuse. This is known as the “MP filter” and is intended to serve three functions. First, it acknowledges the status of the Ombudsman as a servant of Parliament; second, it provides the MP with an opportunity to deal with the complaint as he sees fit; and, finally, it allows inappropriate and vexatious complaints to be rejected before reaching the Ombudsman, thus reducing workload. The MP filter has been much criticised and the UK and France are the only two European countries which have such a filter. The arguments in favour of the MP are not particularly convincing and, in any event, most MPs have today adopted a policy of always referring complaints to the Ombudsman, as they are reluctant to reject them for fear of appearing unhelpful to constituents. Thus, the filter provides no real practical purpose. The Parliamentary Commissioner (Amendment) Bill was introduced into the House of Commons on 15 February 2000, with the intention of removing the MP filter and allowing the Ombudsman to investigate complaints received directly from members of the public.

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However, this was a Private Member’s Bill and it failed to progress through Parliament. In 2010, the Law Commission’s consultation on public sector ombudsman in England and Wales proposed a dual track approach whereby a complainant would be allowed direct access to the Ombudsman whilst at the same time continuing to have the option of submitting their complaint through an MP. To date, no legislation has been brought forward to facilitate these proposals. Given that the Scottish Parliamentary Ombudsman has no filter, it is likely that pressure will continue to be placed on the UK Government for reform. Complaints must also be made within 12 months of the date on which the citizen first had notice of the issue complained of. This is subject to a discretionary power to allow late applications in extraordinary circumstances. Investigations If a complaint does fall within the jurisdiction of the Ombudsman, then an investigation may be conducted. At this primary stage, the Ombudsman should try to promote an amicable settlement between the individual and the department or body concerned. However, if this is not possible then an investigation will proceed in accordance with the legislation. All investigations are conducted in private, and the department or body complained of must be given an opportunity to comment on any allegations contained in the complaint. The Ombudsman has powers similar to those of a High Court judge for securing the presence of witnesses and the production of documents, and Crown privilege or public interest immunity cannot be used to exempt information from investigation. The Ombudsman is protected in the conducting of investigations by the laws relating to contempt of court and so any wilful obstruction of an investigation may be punished as if it were a contempt. Complainants and witnesses who have spent time in assisting an investigation are entitled to claim reasonable expenses. Reports On completing an investigation, the Ombudsman must report the findings to the MP who originally referred the complaint, and to the department or body against whom the complaint was made. If the Ombudsman finds that injustice was caused by maladministration and this has not been rectified then he may lay a special report before both Houses of Parliament. The Ombudsman may also make other special reports as are

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necessary and must make an annual report to Parliament. The reports of the Ombudsman and certain other information relating to investigations are absolutely privileged in the law of defamation. Enforcement The Ombudsman cannot have any recommendations or reports enforced by law. The Ombudsman has no executive power and cannot alter decisions made or order payment of compensation. If, after conducting an investigation, the Ombudsman considers that an injustice has not or will not be remedied then he may lay before each House of Parliament a special report on the case, recommending remedial action. That is, however, the extent of the Ombudsman’s powers. The issue must then be left to the doctrine of ministerial responsibility, the assumption being that pressure will be put upon the Minister concerned to take remedial action. This may not seem like a particularly strong method of enforcement, however, in reality, there is strong pressure on the Government to comply with the Ombudsman’s findings. Such special powers are often not necessary, since an agreed settlement involving, for example, an apology or compensation may be reached between the aggrieved individual and the government department concerned. Criticism and Reform In recent years, the Ombudsman has come under intense public and parliamentary scrutiny. Much of the criticism arising from this has not necessarily been directed solely at the Ombudsman but more at the lack of uniformity across the Ombudsmen system. Besides the Ombudsman, there are several other public and private sector ombudsmen in England for example the Commissioner for Local Administration (Local Government Ombudsman), and the Legal Ombudsman. Each of these Ombudsmen has a separate remit, with differing powers and procedures, with the result that it can often be confusing for a citizen to know exactly where to direct complaints. Consequently, the Cabinet Office published a review of the system, entitled Review of the Public Sector Ombudsmen in England (2000). This paper was well received and among its key proposals suggested having a collegiate ombudsmen system, with a direct point of access for citizens. This would introduce a more uniform approach and would make the system more accessible at the point of use for aggrieved citizens. In July 2001, the Government accepted the main recommendations of the Review and committed to creating a

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new unified and flexible ombudsman body. The Government stated that reform would be considered when Parliamentary time allowed. That reform has yet to begin.

SCOTTISH PUBLIC SERVICES OMBUDSMAN Introduction Ombudsman reform within Scotland has been a modern success story. Section 91 of the Scotland Act 1998 placed an obligation upon the Scottish Parliament to create an Ombudsman (or to make alternative arrangements) to deal with any complaints of maladministration in devolved areas. Thus, from July 1999 until 2002, complaints against the Scottish Executive, the Scottish Administration and other public bodies in Scotland were handled by the UK Ombudsman in his role as Scottish Parliamentary Commissioner for Administration. This interim period allowed the Scottish Parliament to hold a series of consultations in order to canvass opinion as to the best mechanism for handling complaints within Scotland. The result of this consultation was the Scottish Public Services Ombudsman Act 2002 which has established a modern collegiate approach to complaint handling in Scotland. Under the 2002 Act, the various Scottish public sector Ombudsmen have been amalgamated into one centralised body, allowing for ease of use and simplicity. Although the strengths of the separate Ombudsmen were widely recognised, the disparities among the offices were frequently confusing for members of the public. The new “one-stop-shop” approach allows the Ombudsman system to become more co-ordinated and centralised. Constitution, appointment and tenure Under the 2002 Act, the new Scottish Ombudsman has assumed the jurisdiction of the transitional post held by the UK Ombudsman, although the UK Ombudsman may still investigate maladministration within reserved areas of government. The Scottish Ombudsman has also assumed the jurisdiction of other pre-existing ombudsmen in Scotland, namely the Commissioner for Local Administration in Scotland (Local Government Ombudsman), the Health Service Commissioner for Scotland, the Housing Association Ombudsman for Scotland, the External Adjudicators for Scottish Enterprise and Highlands and Islands Enterprise, and the Mental Welfare Commission. The Scottish Ombudsman is appointed by the Queen on the

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nomination of the Scottish Parliament, and is assisted by three Deputy Ombudsmen who are similarly appointed. The Deputy Ombudsmen are intended to reflect the expertise held by former office holders and, to this end, the current Deputies are drawn from the fields of health, housing and local government. The Ombudsman and any Deputy Ombudsman may hold office for a period not exceeding 5 years, subject to a power of removal in pursuance of a resolution of the Scottish Parliament. Office holders are eligible for re-appointment but may not serve a third consecutive term unless through special circumstances it is in the public interest for them to do so. In any event, any office holder who attains the age of 65 must vacate office on 31 December of that year. The Ombudsman and any Deputy Ombudsman have a salary fixed by the Parliamentary Corporation and the office also carries its own staff, subject to approval as to numbers and conditions of service. Jurisdiction The primary role of the Scottish Ombudsman is to investigate complaints from members of the public who claim to have suffered injustice or hardship as a consequence of maladministration by the Scottish Government, agencies and other non-departmental bodies. Schedule 2 to the 2002 Act provides a full list of bodies subject to the jurisdiction of the Ombudsman and is split into two Parts. Part 1 contains a list of authorities which cannot be amended and includes members of the Scottish Executive, health service bodies, local authorities and the police, among others. Part 2 contains a list of Scottish public authorities, and cross-border public authorities, such as Scottish Enterprise, the Scottish Legal Aid Board and the National Consumer Council. This list may be amended by Order in Council. In 2005 an extension to the 2002 Act included higher and further education complaints within the jurisdiction of the SPSO. This was further extended in 2010 and 2012 to include complaints about Scottish prisons, and water and sewerage providers. In essence, the SPSO has jurisdiction over almost all public services in Scotland. With regard to those bodies subject to investigation, there are a number of restrictions placed upon the jurisdiction of the Ombudsman. Schedule 4 to the 2002 Act excludes 15 categories of investigation; these include action taken for the prevention of crime, any civil or criminal legal proceedings, action taken which relates to contractual or commercial matters, any decision made in a judicial capacity, and the giving of instruction, conduct, curriculum and discipline in any local authority educational establishment.

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Furthermore, the Ombudsman may not question the merits of discretionary decisions unless there has clearly been maladministration, nor may any matter be investigated where the complainant has an alternative remedy available, for example a right of appeal. As with the Ombudsman, the concept of maladministration has no direct statutory definition in order to allow flexibility. But there have been criticisms of the Scottish Ombudsman in that s 5 of the 2002 Act includes alongside maladministration the right to investigate “service failures” and “any action” (where the action is taken by a registered social landlord, or a health or family care provider). Thus, s 5 essentially provides additional grounds of investigation which are exercisable only in very specific circumstances. This is somewhat at odds with the centralised ethos of the 2002 Act and may add unwarranted confusion for users of the system. In response, the Scottish Parliament has defended the disparities, claiming that they are necessary to reflect the procedural nuances of the pre-existing Ombudsmen. Making a complaint An innovation of the 2002 Act can be found in the removal of the “MP filter” concept, resulting in the absence of an “MSP filter” for Scotland. Thus, in keeping with the spirit of a collegiate approach, citizens may complain directly to the Scottish Ombudsman. It is also possible to have a complaint lodged on a person’s behalf by any authorised person, for example an MSP or a local councillor. Complaints must be made within 12 months of the date on which the citizen first had notice of the issue complained of, subject to a discretionary power to allow late applications in extraordinary circumstances. Complaints may be submitted either in writing or electronically. This is a key difference from the procedure followed by the UK Ombudsman, where all complaints must be submitted in writing. Although the vast majority of complaints are generally written, there is a growing sector of the public who prefer to deal with issues via the Internet. As a result, citizens may submit complaints using an electronic submission form available on the Ombudsman’s website. The Ombudsman also has a discretionary power to accept oral complaints in extraordinary circumstances. Investigations If a complaint falls within the jurisdiction of the Ombudsman then an investigation may be conducted. Investigations are conducted in private, and the department or body complained of must be given an opportunity to

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comment on any allegations contained in the complaint. The Ombudsman may compel the production of any information or documents required and has similar powers to that of a Court of Session judge for securing the presence and examination of witnesses. Crown privilege or public interest immunity claims cannot be used in relation to documents subject to investigation by the Ombudsman. Reports On completing an investigation, the Ombudsman must report the findings to the complainant – the department, body or person against whom the complaint was made, and the Scottish Ministers. Furthermore, a report must be laid before the Scottish Parliament which must not identify any person other than the department, body or person complained of. If the Ombudsman finds that hardship or injustice has been caused by maladministration and this has not been rectified, then a special report may be laid before the Parliament. In addition, the Ombudsman must also present an annual report to the Parliament. Enforcement The Scottish Ombudsman cannot have any recom-mendations or reports enforced by law. The Ombudsman has no executive power and cannot alter decisions made or order payment of compensation. If, after conducting an investigation, the Ombudsman considers that an injustice has not or will not be remedied then a special report on the case is the strongest form of action. Enforcement is left up to ministerial responsibility and the assumption that pressure will be put upon the Government to take remedial action. This may not seem like a particularly strong method of enforcement for a modern Ombudsman system. However, the Scottish Executive identified that keeping enforcement powers to a minimum would in fact aid co-operation between bodies and the Scottish Ombudsman, whereas investing draconian powers of intervention would be likely to hinder investigations. To date, the Scottish Executive appears to have been correct and many cases have been settled through apology, compensation or remedial action stemming from the Ombudsman’s comments. FURTHER REFORM The concept of maladministration Maladministration has frequently been criticised as too narrow and can

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be contrasted with the remit of the New Zealand Ombudsman who may investigate any decision or act which appears to be “wrong”. It was suggested by the 1977 Justice Report Our Fettered Ombudsman that “maladministration” be replaced with the phrase “unreasonable, unjust or oppressive”, but this change has never materialised. Conversely, it can be argued that the concept of maladministration is not in fact narrow, and that it might well be possible to challenge unreasonable, unjust or oppressive actions by claiming that they are the result of ineptitude or arbitrariness on the part of government officials. A previous UK Ombudsman, Sir Idwal Pugh, stated publicly that he regarded his work as being concerned with just such unreasonable, unjust or oppressive actions, and he would have no hesitation in concluding that there must have been some aspect of maladministration in the procedure leading to the taking of such a decision. The courts have not insisted that the complaint must indicate what aspects of maladministration are alleged. The application merely needs to indicate what the complaint is about, leaving it to the Ombudsman to discover any maladministration. This approach can be seen in R v Local Commissioner for Administration for the North and East Area of England, ex parte Bradford City Council (1979). However, the concept of maladministration is certainly confusing. This is especially true of the work of the Scottish Ombudsman, where an investigation may go beyond maladministration into service failures and other actions, but only in limited circumstances. This may be likely to result in the less socially confident, and less articulate, being able to understand the nature of any complaint. Inadequate use of press and publicity It has often been stressed that the Ombudsmen should make more extensive use of the press, by supplying full details of all reports. Traditionally, reviews and comment upon the reports appear in various specialised journals but general public awareness of the system is low. Greater publication of reports would also bring extra pressure to bear on the Government to correct any injustice uncovered. To date, the Ombudsmen have not utilised any greatly increased amount of publicity, however, they have attempted to be more accessible and user-friendly. This has been achieved chiefly through information technology and the creation of user-friendly websites providing a portal for initial complainants. The website of the UK Parliamentary and Health Service Ombudsman can be accessed at www. ombudsman.org.uk, and that of the Scottish Public Services Ombudsman at www.spso.org.uk.

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Jurisdiction The Ombudsmen cannot carry out an investigation where the act in question has been carried out in accordance with law and without maladministration. This is the case even though the law in question is operating in an unfair, unreasonable, oppressive or unintended way. Indeed, it may be that the fault is not with a government department or body but with the legislation that they are obliged to execute. The question thus arises as to whether Ombudsmen should be able to investigate such instances and have the power to suggest changes in legislation, including statutory instruments. This would be beneficial to Parliament since the Ombudsmen are ideally placed to form a view as to whether current legislation is working in an undesirable way “on the ground”. Essential Facts • The Parliamentary and Health Service Ombudsman was created by the Parliamentary Commissioner for Administration Act 1967 and the Health Service Commissioners Act 1993 which lays out the composition, jurisdiction and powers of the Ombudsman.The remit of the Ombudsman extends to England and Wales, as well as any reserved matters for Scotland. • The primary role of the UK Ombudsman is to investigate complaints by private citizens who have suffered injustice as a result of maladministration by government departments, agencies and nondepartmental bodies and the NHS. Complaints must be made in writing and initially through an MP; this is known as the MP filter and has been much criticised. • The office of the Scottish Public Services Ombudsman (SPSO) was created by the Scottish Public Services Ombudsman Act 2002 which lays out the composition, jurisdiction and powers of the SPSO. • The SPSO is a collegiate body and also incorporates the jurisdiction of pre-existing ombudsmen in Scotland, namely the Commissioner for Local Administration in Scotland, the Health Service Commissioner for Scotland, the Housing Association Ombudsman for Scotland, the External Adjudicators for Scottish Enterprise and Highlands and Islands Enterprise, and the Mental Welfare Commission. • The primary role of the SPSO is to investigate complaints from members of the public who have suffered injustice or hardship as a consequence of maladministration. Complaints may be made directly to the Ombudsman since there is no “MSP filter”.

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• Both the UK Ombudsman and the SPSO have the power to conduct investigations into instances of maladministration and have statutory authority to compel the production of documents and witnesses. • On completion of an investigation, the UK Ombudsman must produce a report containing findings and recommendations and may lay a special report before Parliament where no remedial action is taken in light of the report. The SPSO must act similarly, with a special report being laid ultimately before the Scottish Parliament. • Neither the UK Ombudsman nor the SPSO has any legal powers of enforcement. They cannot coerce action to be taken in light of their recommendations. Instead, they rely upon co-operation from bodies complained of through ministerial responsibility and Government pressure.

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index actio popularis, 110 Acts of the Scottish Parliament, 2, 96–97, 99, 123 ad vitam aut culpam, 12 Additional Member System, 43, 89–90, 98 adjournment debates, 51 Aitken, Jonathan, 65 Allighan, Garry, 64 Alternative Vote, 44, 75 Archer, Jeffrey, 60 asps (Acts of the Scottish Parliament), 2, 96–97, 99, 123

member’s bill, 94, 95–96 private bill, 94, 95 reconsideration stage, 95 stage 1, 94–95 stage 2, 95 stage 3, 95 “Birmingham Six” appeal, 27 Blair, Tony, 72, 73 block grant, 89 Blunkett, David, 20, 79 “Breaking the Deadlock” group, 58 Brown, Ron, 63

backbench debates, 50–51 Bagehot, Walter, 31 Barnett formula, 88, 89 Bill of Rights, 5, 6 bills committee stage, 48 Consideration of Lords Amendments, 49 delaying power, 49 first reading, 47–48 guillotine motion, 49 hybrid, 47 Lords stage, 49 parliamentary stage, 47–50 private, 47 private member’s, 46–47 programme motion, 49 public, 46–47 report stage, 48 Royal Assent, 49–50 second reading, 48 third reading, 48–49 public, 46–47 bills: Scottish Parliament accompanying documents, 94 committee bill, 94, 95–96, 98 consultation, 94 Executive, 94–95, 96 lead committee, 95 legislative competence, 93

Cabinet, the collective responsibility, 74–75 committees, 75–76 conventions, 9 description, 73, 81 functions, 73–74 legislative power, 76 meetings, 74 members, 73 Prime Minister, 69–73 Cabinet Office Review of the Public Sector Ombudsman in England (2000), 129–130 Calman Commission, 86 Cameron, David, 38, 72, 73, 77, 87 Campaign for a Scottish Assembly, 83 Carrington, Lord, 20, 79 “cash for questions” scandal, 65 Civil List, 34 Civil Service establishment, 70 generally, 74 reserved matter, 84 Scotland, 104–105, 106 Clegg, Nick, 38, 77–78 coalition government, 38, 44, 46, 73, 75, 77, 101 collective responsibility doctrine, 74–75

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Commission on Scottish Devolution, 86 Commissioner for Local Administration in Scotland see Scottish Public Services Ombudsman Committee of Imperial Defence, 75 common law meaning, 2, 7–8 Consolidated Fund, 12, 27, 126 constitutional law meaning, 1 constitutional monarchy meaning, 3 conventions meaning, 3 UK constitution, 9 Counsellors of State, 33 Crichel Down Affair, 20, 79 Crossman, Richard, 127 Cross-Party Groups, 93 Crown Estate, 34, 88 declaration of incompatibility, 7, 10, 17; see also European Convention on Human Rights declarator, 120, 121 Department of Constitutional Affairs, 14 Deputy Prime Minister, 77–78 Devlin, Bernadette, 64 devolution meaning, 3 memorandum of understanding, 88 devolution issues, 96 devolved matters, 85–86 Dicey, A V parliamentary sovereignty, 15, 17–18 Royal Prerogative, 36, 41 dual mandate, 91 Duchy of Cornwall, 35 Duchy of Lancaster, 34 Dugdale, Thomas, 20, 79 Duke of Edinburgh Councellor of State, 33 parliamentary allowance, 35, 41 Dunpark Committee, 120 ECHR see European Convention on Human Rights

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Edinburgh Agreement, 87 elections see general election; Scottish general election emergency debates, 51 error of law, 112–113 European Community law, 8, 9 European Convention on Human Rights asbestos, 97 compatibility, 7, 10, 17, 93, 96–97, 99 fair and public hearing, 25, 96 foxhunting, 97 freedom from discrimination, 7 parliamentary sovereignty, 16–17 peaceful assembly, 97 respect for private and family life, 1, 97 right to liberty, 7, 96 sheriffs, 25–26 temporary sheriff, 25, 29, 96 unsound mind, 96–97 European Union membership and parliamentary sovereignty, 17 executive meaning, 2 Executive Agencies, 79, 80, 81 Scottish Government, 105 extraordinary general election, 90 extraordinary Scottish general election, 102, 104 Falklands, 20, 79 federal system of government meaning, 3 fettering discretion see also judicial review by agreement or contract, 116–117 self-imposed rule, 115–116 First Minister appointment, 101, 105 nomination, 102 vacancy, 102 first past the post system, 12, 43, 44, 66 First Secretary of State, 77–78 general election 1979, 83 1992, 73 2010, 38, 44, 70, 75, 77

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index

2015, 78 eligibility for election, 45 extraordinary, 90 first past the post system, 12, 43, 44, 66 generally, 69, 81 role of monarch, 43 Scottish see Scottish general election timing, 34, 39, 44, 72, 90 voting rights, 44, 66 government federal system, 3 organs of, 2 unitary system, 3 government bill, 46 government departments organisation, 80–81 government handout bills, 47 guillotine motion, 49 Haldane Committee, 73–74 Hansard, 51, 62, 67 Health Service Commissioner for England see Parliamentary and Health Service Ombudsman Health Service Commissioner for Scotland see Scottish Public Services Ombudsman Heath, Edward, 38 hereditary peers, 54 high profile groups, 81 House of Commons adjournment debates, 51 Alternative Vote, 44, 75 backbench debates, 50 conduct, 65–66 committees, 52 debates, 50–51 devolved matters, 52 disqualification from membership, 45 emergency debates, 51 functions, 45–50 Joint Committees, 53 legislative functions, 46–50 Ministers, statutory limit, 12 number of MPs, 43 Opposition Day debates, 50 parliamentary privilege, 60–66, 67; and see parliamentary privilege parliamentary questions, 20, 21, 51–52, 62, 65, 79, 82

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representative function, 45–46 scrutiny of the executive, 50–53 Select Committees, 52–53 standards of conduct, 65–66 written answers, 51 House of Lords abolition, 60 after Wakeham, 58–59 allowances, 56 composition, 54–55, 57–60 conduct, 66 expulsion, 60 functions, 56 hereditary peers, 54 imprisonment, 60 life peers, 55 Lords of Appeal in Ordinary, 55 Lords Spiritual, 54 non-attendance, 59 parliamentary privilege, 60–66, 67; and see parliamentary privilege powers, 56–57 reform, 57–60 retiral or resignation, 59 suspension, 60 Upper House, 53 Wakeham Commission, 57–58 House of Lords Appointment Commission, 55 hung Parliament, 38 hybrid bill, 47 illegality see also judicial review error of law, 112–113 fettering discretion, 115–117 improper delegation, 115 improper purpose, 114 relevant considerations, 113–114 improper delegation, 115 improper purpose, 114 interdict, 120, 122 interim interdict, 122 Irish Home Rule, 83 irrationality and proportionality, 111, 117–120 Joint Committees, 53 judges see also judiciary

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absence of bias, 28 ad vitam aut culpam, 12 appointment in Scotland, 23–25, 28 competence, 27 conduct, 27 controversy, 26–27 defamation, protection from, 12 eligibility, 24, 28, 29 impartiality, 26–28 independence, 12, 23, 28 judicial privilege, 26 Kilmuir rules, 26 political activities, 26 political neutrality, 26, 27 removal, 24–25 retirement, 24 salaries, 12, 27 temporary, 25–26 Judicial Appointments Board for Scotland, 23–24, 26, 28 Judicial Appointments Commission, 14 judicial privilege, 26 judicial review actio popularis, 110 error of law, 112–113 fettering discretion, 115–117 grounds of challenge, 111–120 illegality, 111–117, 123 improper delegation, 115 improper purpose, 114 irrationality, 111, 117–118, 123 meaning, 107, 123 pressure groups, 110 procedural impropriety, 111, 119–120, 123 proportionality, 111, 118, 123 remedies, 120–123 scope, 107–109, 123 sufficient interest concept, 110 supervisory jurisdiction, 107, 108 title and interest to sue, 109–111, 123 tripartite relationship, 108–109 Judicial Studies Committee, 24 judiciary see also judges executive, separation from, 12 independence, 12, 23, 28 legislature , 12–13 meaning, 2

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Junior Scottish Ministers, 103, 105 Justice Report Our Fettered Ombudsman (1977), 134 Kilmuir rules, 26, 27 Law Commission, England & Wales public sector ombudsman, consultation paper, 128 Law Officers of the Crown, 77 Leader of the House of Commons, 76 legislation sources, 6–9 legislature meaning, 2 Leveson inquiry, 23 life peers, 55 Lord Advocate, 77, 103–104 Lord Chancellor reform of role, 13–15 Lord Privy Seal, 76, 77 Lords of Appeal in Ordinary, 55 Lords Spiritual, 54 Major, John, 72, 73 maladministration, 20, 127, 133–134, 135 Maudling, Reginald, 64 Mellor, David, 20, 79 Member of the Scottish Parliament see MSP memorandum of understanding devolution, 88 ministerial responsibility doctrine, 19–20, 21, 78–79, 80, 82 Ministers of the Crown appointment, 76 civil servants, 79 Code of Ethics and Procedural Guidance, 78 duties, 78 financial interests, 78 ministerial responsibility, 78–79, 80, 82 powers, 78 responsibilities, 77 minority government, 38, 46 monarch, the see also Queen, the abdication, 32

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index

duties, 36 illness, 33 incapacity, 33 minority, 33 personal income, 34–35, 41 temporary absence, 33 title, 32 monarchy, the Civil List, 34 constitutional role, 31, 41 Counsellors of State, 33 financing, 33–35 funding sources, 33–35 history, 31 parliamentary allowances, 35, 41 Prince of Wales, 35 Privy Purse, 34, 41 regent, 33 Sovereign Grant, 34, 41 succession to the Crown, 31–33, 41 taxation, 35 title to the Crown, 31–33, 41 Montesquieu Separation of Powers doctrine, 11 motion of no confidence, 104 MP see also House of Commons Code of Conduct, 65–66; see also parliamentary privilege election, 45 MP filter, 127, 128, 135 MSP see also Scottish Parliament election, 89–91, 98 National Assembly for Wales, 3, 5, 52 nemo index in causa sua, 28 Next Steps Agencies, 79, 80, 81 NHS, 81 non-departmental public bodies (NDPB), 23, 80, 81 non-ministerial departments, 81 Northern Ireland, 3, 5 Ombudsman see also Parliamentary and Health Service Ombudsman; Public Services Ombudsman for Wales; Scottish Public Services Ombudsman

MCFADDEN_PUBLIC LAW.indd 141

141

jurisdiction, 135 maladministration concept, 133–134 meaning, 125 Our Fettered Ombudsman report, 134 press and publicity, 134 websites, 134 Opposition Day debates, 50 Order of Merit, 39 Order of the Garter, 39 Order of the Thistle, 39 Parliament see also Scottish Parliament; UK Parliament dissolution, 39, 43, 44, 72 law and custom, 8 sovereignty, 9, 15–18, 21 parliamentary allowances, 35, 41 Parliamentary and Health Service Ombudsman see also Ombudsman appointment, 126 Cabinet Office review, 129–130 complaints, 127–128 constitution, 126 criticism and reform, 129–130 enforcement, 129, 136 function, 126 investigations, 128, 136 jurisdiction, 126–127, 135 making a complaint, 127–128 maladministration, 80, 127, 133–134 MP filter, 127, 128, 135 reform, 129–130 reports, 128–129, 136 salary, 126 tenure, 126 website, 134 Parliamentary Commission for Standards, 65, 66 Parliamentary Commissioner (Amendment) Bill (2000), 127–128 Parliamentary Commissioner for Administration see Parliamentary and Health Service Ombudsman Parliamentary Commissions generally, 53 Parliamentary Ombudsman see Ombudsman

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law E S S EN T I A L S

parliamentary papers, 62 parliamentary privilege see also House of Commons; House of Lords admonition, 65 breach, 64–65 clarification, 61, 62 contempt, 64–65 criminal offences, 65, 67 expenses scandal (2009), 64 fines, 65 freedom from arrest, 63 freedom of speech and debate, 61–62, 67 Green Paper, 61 imprisonment, 65 key privileges, 60–61 meaning, 60, 66 punishments for breach, 64–65 qualified, 62 reprimand, 65 right to punish for breach, 64–65 right to punish for contempt, 64–65 right to regulate composition, 63, 67 right to regulate proceedings, 63–64, 67 standards of conduct, 65–66 suspension, 65 parliamentary questions, 20, 21, 51–52, 62, 65, 79, 82 parliamentary sovereignty consultation with interested parties, 16 debates, 17–18 disobedience, 16 European Union membership, 17 international agreements, 16–17 legal basis, 15–16 limitations, 16–17, 21 meaning, 15, 21 MPs: beliefs and opinions, 16 world status, 16–17 Peel, Sir Robert, 69 Plaid Cymru, 83 prerogative powers effect of statute, 36–37, 40–41, 42 executive, 40–41 extent, 40, 42 meaning, 2 “personal” prerogatives of the monarch, 37–39 pressure groups, 110

MCFADDEN_PUBLIC LAW.indd 142

Preston, Peter, 65 Prime Minister appointment, 37–39, 41, 69–70 Cabinet, and the, 69; see also Cabinet, the constitutional implications of powers, 72–73 experience, 70 joint offices, 70 patronage powers, 72 pay and conditions, 70 policy co-ordination, 72 powers, 70–73 primus inter pares, 72 residence, 70 Prince of Wales Duchy of Cornwall, 35 funding, 35 line of succession, 33 taxation, 35 private bill, 47 Private Member’s Bill, 46–47 Privy Council, 69 Privy Purse, 34, 41 procedural impropriety, 119–120 procedural ultra vires, 119–120 Profumo, John, 20, 79 programme motion, 49 proportionality and irrationality, 111, 117–120 public bill, 46–47 public bodies procedural requirements, 119–120 public corporations, 81 public law glossary of terms, 2–3 scope, 1 sources, 6–9 Public Petitions Committee, 98 Public Services Ombudsman for Wales, 125 quangos, 80, 81 Queen, the see also monarch, the; monarchy, the conferring appointments and honours, 39 Crown appointments, 39 dismissal of Ministers, 39 dissolution of Parliament, 39

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index

duties, 36, 41 executive prerogatives, 40 First Minister appointment, 101, 105 Head of Nation, 36, 41 Head of State, 36, 41 Household appointments, 39 Ombudsmen appointments, 126, 130–131 parliamentary allowance, 35, 41 personal income, 34–35, 41 “personal” prerogatives, 37–39, 41 Prime Minister appointment, 37–39, 41 Royal Assent, 9, 39, 43, 49–50 taxation, 35 Queen’s Speech, 50, 76 Question Time, 27, 92 questions parliamentary, 20, 21, 51–52, 62, 65, 79, 82 reduction, 120–121 referendum on independence for Scotland, 87 regent, provision for, 33 Register of Members’ Interests, 65–66 remedies, judicial review declarator, 120, 121 interdict, 120, 122 reduction, 120–121 statutory procedures, 122–123 reserved matters, 84–85, 98 Riddick, Graham, 65 Royal Assent, 9, 39, 43, 49–50 Royal Commission A House for the Future, 57–58 Royal Grants-in-Aid, 34 Royal Prerogative description, 36–37, 41 executive prerogatives, 40–41 limits, 36, 42 “personal” prerogatives of monarch, 37–39 powers, 2, 41–42 Royal Trustees, 34 Royal Victorian Order, 39 Royal Warrant of Appointment, 24 Rule of Law, 18–19, 21 Salmond, Alex, 102 Scientology, 61

MCFADDEN_PUBLIC LAW.indd 143

143

Scotland Bill 2015, 88, 89 Scottish Administration see Scottish Government Scottish Constitutional Convention, 83 Scottish Executive see also Scottish Government use of term, 101, 105 Scottish general election see also general election 1999, 84, 91 2003, 91 2007, 91, 104 2010, 87 2011, 90 2016, 87 dual mandate, 91 extraordinary, 90, 102, 104 right to vote, 87, 90 standing for election, 90–91 timing, 90 Scottish Government advisers, 105 Cabinet Secretaries, 103 Civil Service, 104–105, 106; see also Civil Service Deputy First Minister, 103 Directorates, 105–105 Executive Agencies, 105 First Minister, 101–102, 105 judicial appointments, 23–24 Junior Scottish Ministers, 103, 105 Lord Advocate, 77, 103–104, 105 motion of no confidence, 104 Scottish Law Officers, 103–104, 105 Scottish Ministers, 102–103, 105 Solicitor General, 77, 103, 105 Scottish Home Rule Association, 83 Scottish Law Officers, 77, 103–104, 105 Scottish Ministers, 102–103, 105 Scottish National Party, 83, 102 Scottish Parliament see also UK Parliament Additional Member System, 43, 89–90, 98 Barnett formula, 89 bills, stages, 94–95 block grant, 89 Committee Bills, 94, 95–96, 98

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law E S S EN T I A L S

committee sessions, 92–93 courts, 96–97 Cross-Party Groups, 93 devolution of further powers, recommendations, 87–88 devolved matters, 85–86 dual mandate, 91 election to, 90–91 establishment, 83–84, 98 Executive Bills, 94–95 female representation, 91 finance, 89 generally, 83–84 House of Commons questions, 52 how it works, 91–93 income tax, 89, 98 law making, 93–96 legislative competence, 93, 96, 97 matters reserved to the UK Parliament, 84–85, 98 members, 89–91 Members’ Bills, 94, 95–96 plenary sessions, 91, 92 powers, 84–88 Private Bills, 94, 95 public participation, 98 Public Petitions Committee, 98 reports of proceedings, 98 reserved matters, 84–85, 98 right to vote, 87, 90, 98 sitting days, 91 Smith Commission recommendations, 87–88 standing for election, 90–91, 98 website, 98 working week, 91 Scottish Parliament Official Report, 98 Scottish Public Services Ombudsman see also Ombudsman appointment, 130–131 complaints, 132, 135 constitution, 130 creation, 125, 130 enforcement, 133, 136 investigations, 132, 136 jurisdiction, 130, 131–132, 135 maladministration, 133–134, 135 one-stop-shop approach, 130

MCFADDEN_PUBLIC LAW.indd 144

reports, 133, 136 salary, 131 tenure, 131 website, 134 Scottish Statutory Instruments, 96 Secretaries of State, 76–79 Section 30 Orders, 86, 87 Select Committees, 52–53 Senior Salaries Review Body, 27 Separation of Powers control, 12–13 doctrine, 11 functions, 13 judiciary, 23 membership overlap, 11–12 reform of role of Lord Chancellor, 13–15 three organs of government, 11, 21 Sewel, John, 60 sheriff eligibility, 24, 28, 29 part-time, 26 removal from office, 25 temporary, 25, 26, 29, 96, 99 Smith Commission, 87–88 SNP, 83, 102 Solicitor General, 77, 103, 105 Sovereign Grant, 34, 41 Speaker of the House of Lords, 13, 14 standing orders, 8 statute validity, 10 statute law meaning, 2 statutory interpretation, 7, 8, 10, 13, 62, 67 sufficient interest concept, 110 Supreme Court see UK Supreme Court temporary sheriff, 25, 26, 29, 96, 99 Thatcher, Margaret, 71, 72 title and interest to sue, 109–111, 123 Treaty of Utrecht (1713), 69 Tredinnick, David, 65 tripartite relationship, 108–109 UK constitution authoritative writers, 8–9 characteristics, 5–6

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index

common law, 7–8 conventions, 3, 9 European Community law, 8 law and custom of Parliament, 8 legislation, 6–7 public law sources, 6–10 UK Home Civil Service see Civil Service UK Parliament see also Scottish Parliament dissolution, 39, 43, 44 elements, 43, 66 fixed term, 44, 66 forming Governments, 46 House of Commons, 43–53 House of Lords, 53–60 law and custom, 8 monarch, role of the, 43, 66 parliamentary privilege, 60–66; see also parliamentary privilege parliamentary questions, 20, 21, 51–52, 62, 65, 79, 82 Queen’s Speech, 50, 76 reserved matters, 84–85, 98 scrutiny of the executive, 50–53 sovereignty, 9, 15–18, 21 UK Supreme Court, 14, 53, 55

MCFADDEN_PUBLIC LAW.indd 145

145

legislative competence reference, 93 ultra vires doctrine, 112, 124 unitary system of government meaning, 3 unreasonableness, 111, 117–118, 123, 124 voting rights Scottish Parliament elections, 87, 90, 98 UK Parliament elections, 44, 66 Wakeham Commission, 57–58 Wales National Assembly, 3, 5, 52 Plaid Cymru, 83 Public Services Ombudsman, 125 Walpole, Robert, 27, 69 Wednesbury unreasonableness, 117, 118, 124 White Paper Modernising Parliament, Reforming the House of Lords (1999), 57 The House of Lords: Reform (2007) Whyatt Report The Citizen and Administration, 125 Wilson, Harold, 38

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