Chapter 4 Guidance to answering the practical exercises


Q1: Should statutes made by the UK Parliament apply to all the UK by default?

The UK is comprised of four countries: England, Wales, Scotland and Northern Ireland. Each has its own cultural and political identities. Statutes passed by the UK Parliament apply by default to the whole UK, and Parliament must explicitly state if it wishes to limit the geographical application of a statute (e.g. the Hunting Act 2004, which applies only to England & Wales. Each of Scotland, Wales and Northern Ireland has devolved legislatures and governments, and the right to pass legislation in certain spheres (e.g. Scottish railways). Parliament retains the right to legislate in these areas however- though it rarely does so.

This is a question that has received increased impetus since the Scottish Independence referendum of 18 September 2014. Whilst the Scots voted to stay within the UK, the reaction from the UK’s ‘national’ parties, and in particular, the Conservative Prime Minister David Cameron, suggested that the constitutional settlement would be reconsidered.

This is a question of jurisdiction, and its geographical reach. Whilst the answer is clearly open to opinion, the default position outlined in the question would seem to be the most practicable. The UK Parliament is a parliament of the whole UK, just as US Congress is the legislature of the whole US. Even though the basis of this power is different for these two legislatures (the US is federal- with sovereignty split between federal and state institutions, and the UK is Unitary, with sovereignty vesting in Parliament), it is practical for a legislature to have the power (by default, in the UK) to legislate for the entire state on matters within its constitutional competence.

On a related issue, one matter to which David Cameron expressly referred on the day after the Scottish Referendum was the ‘West Lothian Question’. The ‘West Lothian Question’ was originally raised by the MP for West Lothian, Tam Dalyell, in 1977, when the then Labour Government proposed a referendum on Scottish devolution. Dalyell argued that, if powers over certain matters were devolved to a Scottish Parliament, then Parliament’s power to legislate on those matters would apply to England (and possibly Wales and Northern Ireland) only. Dalyell argued that it was unfair to allow Scottish MPs to vote on such matters.

‘Solving’ the West Lothian Question is infamously difficult, partly because there seems to be no impetus for an English Parliament, separately from a UK Parliament. Hence the position (at the time of writing) remains that MPs within the UK Parliament, from constituencies in England, Scotland, Wales and Northern Ireland, all have authority to legislate for England only in matters where Parliament has chosen to devolve its powers to national legislatures.

If there were an ‘English Parliament’, the question posed in the question would not seem so significant, because its statutes would apply by default only to England.

Q2: Does the Regulatory Reform Act have a place in a democracy like the UK?

There is a range of differing viewpoints on this issue, and you may quite legitimately have your own which differ from those set out here. 

Parliamentary debate can be extremely lengthy and even long-winded at times.  Sometimes, important legislation is not passed merely because of increasing demands upon the legislature. The Act was welcomed by some in the business world, including the CBI, who regarded it as a useful tool to cut ‘red tape’. Indeed, its aim was to enable Ministers quickly to reform unnecessary and over-complicated legislation to reduce the burden on businesses.

However, although the Act was to replace an existing law which allowed Ministers to reduce regulatory burdens, its effect was far more drastic.  It covered primary legislation in addition to delegated legislation, and if its power had not been fettered, it could have resulted in dramatic changes to the way in which legislation, the main source of law today, was introduced.  The Government’s initial response was to state that it would only be used for ‘uncontroversial’ matters, but who is to decide what is controversial? 

Your views on this issue will depend, in part, upon how you perceive the Parliamentary process.  How important do you regard the debate and deliberation of new statutes?  Do you consider that the detailed process by which a Bill becomes an Act is essential?  Or do you believe that the Government which has the majority will invariably succeed in passing the legislation it requires, and so it would be far more efficient to use a truncated procedure, even though this would require you to trust the Ministers responsible?

In fact, as a result of considerable opposition to the Bill as it was originally drafted, the Government ‘listened and acted’ and tabled various amendments ‘that put beyond doubt that this Bill [would] deliver our better regulation agenda and nothing else’ (Jim Murphy, Cabinet Office Minister).  These amendments included various ‘pre-conditions’ that must be met before the powers could be invoked, including that any such Orders should be proportionate to the policy objective, should not remove any necessary protection, such as civil liberties,  nor prevent the exercise of any right or freedom which a person might reasonably expect to continue to exercise.  The amended Bill came into force in January 2007 as the Legislative and Regulatory Reform Act 2006.

Do note that under various pieces of Brexit legislation, considerable powers are delegated to ministers to smooth the path to a new body of law. For instance, under the EU (withdrawal) Act 2018, ministers have been given some freedom to legislate to deal with ‘legislative deficiencies’ resulting from withdrawal (s.8) and implement withdrawal (s.9). This legislation have raised similar issues to the LRRA 2006.

Q3: Is Parliament still sovereign?

This question vexed legal academics from the passing of the European Communities Act 1972 until the June 2016 referendum opting for Brexit – see chapter 2 for more on this.

The issue arose because of the seeming disparity between the definition of Sovereignty and the reality of the UK Parliament’s position.

Although sovereignty is a constitutional concept debated by legal academics, perhaps more than any other, its essence is clear. An institution which is sovereign can make or unmake any law whatsoever within its stated jurisdiction. This does not necessarily imply that no other body has power to make law; merely that such powers are granted by or exercised under the supervision of, the sovereign body.

Applied to the UK Parliament this would mean that Parliament has unfettered power to make law, or unmake law in the UK. This power is delegated by Parliament to ministers (via regulatory orders, statutory instruments etc.) and to local authorities, among other actors. But, it is also handed over (in defined fields and in respect of defined jurisdictions) to devolved legislatures. Until January 2020, power to legislate in certain areas was also devolved to the EU.

Those who maintain Parliament remains sovereign maintain that Parliament is at liberty to withdraw these powers. Until recently this debate was quite academic in nature, but since the Brexit referendum, the debate seems to have been concluded. In the context of the UK’s former EU membership, Parliament might have been said to have lent its sovereignty on certain matters to the EU. This sovereignty was reclaimed when Brexit took effect.

Devolved power is also subject to an analogous logic, save for the fact that the Northern Ireland Assembly has indeed had its powers granted, withdrawn, and reinstated in the past.

Once again, distilling the essence of this discussion from the muddy waters of political discourse is a challenge for many students and academics. 

Q4: Are human rights adequately protected by the mechanisms of the Human Rights Act 1998?

It is quite clear that the Human Rights Act (HRA) represented an advance on the previous position in the UK when an ad hoc series of protections was supplemented by recourse to the European Court of Human Rights, a procedure that was both lengthy and expensive.

One argument is that the HRA is inadequate in that it preserves Parliamentary Sovereignty. No court can strike down legislation on the grounds that it conflicts with the HRA or ECHR jurisprudence. Before the HRA was passed, many thought that legislation should be passed with constitutional status, above that of any Act of Parliament. The Equality and Human Rights Commission (granted ‘A’ status as a national human rights commission by the UN) maintains that this would not have been in keeping with the UK constitution, and that the HRA is an appropriate protection in the UK context.

The mechanism of declarations of incompatibility (‘DOI’) under s4 HRA reflects this approach. Since 1998 around 40 DOIs have been made, of which fewer than 1/3 have been overturned on appeal. The vast majority have been remedied by remedial legislation either before or after the DOI.

In short, the mechanism seems to work- although you may disagree.

The Joint Committee on Human Rights (i.e. comprised of members of both Houses of Parliament) has concluded that the Act has impacted on domestic legislation where necessary but not beyond, e.g. on counter-terrorism legislation; and that the process of policy formulation has benefitted from procedures built into the HRA- e.g. Statements of Compatibility.

Since the commencement of the Human Rights Act, all proposed legislation being considered by Parliament has had to be accompanied by a statement from the Minister in charge of the bill, before its second reading, that in his or her view the provisions of the bill are compatible with the Convention rights, or that despite being unable to make such a statement the bill should proceed.  This process triggers scrutiny of each bill by the executive, legislature and judiciary, if necessary. The Equality and Human Rights Commission has said that this process encourages open government and allows human rights to be discussed beyond the narrow confines of the judiciary, but also that the process could be strengthened by asking ministers to provide reasoning for their statements of compatibility.

Another factor is the need to filter out media noise on the Act- especially in the light of ‘rogue’ decisions in courts.  It is sometimes tempting to think that protections afforded to terrorist suspects are ‘human rights gone mad’. But this is to ignore the inbuilt proportionality built into the HRA.

Again, this area is hugely controversial, and you may have your own views. For a detailed analysis, you may wish to read the paper by the Equality and Human Rights Commission,, ‘The case for the Human Rights Act’.

5. Will UK legislation shadow EU legislation postBrexit?

In earlier editions of this book it was unclear what would happen post-Brexit in relation to EU Law. At the time of writing, the UK government has made it clear that it prefers the UK to be free to make its own laws, even if that means compromising future coordination with the EU. This means that the UK is unlikely to become a member of the European Free Trade Association or remain in the European Economic Area.

Under the EU (Withdrawal) Act 2018, as we have seen, the European Communities Act 1972 was repealed. However, to provide continuity, the Act created a new body of law, “retained EU Law” – so- by default, considerable regulatory alignment remained and remains after the UK left the EU. At the time of writing, the future relationship between the UK and EU remains unclear, but it is likely that the UK will resist any arrangement requiring it to follow EU Law or be bound by judgments of the ECJ.

However, though formal alignment with the EU is unlikely, as mentioned in the text, the UK is physically and economically close to the EU, and businesses will need to heed EU law for a long time. Further, much UK domestic legislation is based on EU legislation- in particular employment law, competition law and also some areas of IP law. These areas are likely to be practically aligned for some time.

The question, then, is now political, rather than legal.

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