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In public law, abrogation is the proposing away of a right, power or value, by a public body in delegating power or failing to carry out a responsibility or duty. [1] [2] The abrogation of such a responsibility or duty, unless required by primary legislation [3] would amount to an unconstitutional delegation of power to a foreign government or other sovereign power. [4]
It is a protected value at Common Law that Parliament has legislative supremacy [note 1] [6] even to the point that the sovereign power extends to the breaking of treaties, if need be. [7] [8]
In the judicial review R (on the application of Andrew Michael March) v Secretary of State for Health which challenged the UK Department of Health's decision not to implement Recommendation 6(h) of the Archer Independent Inquiry, [9] there was reference to abrogation in the 2009 legal papers of both the defendant and the claimant which led up to the hearing the following year. The claim form, dated 18 August 2009, originally included the additional ground that Government took into account irrelevant considerations. The claimant suggested that Government had abrogated their responsibility: ″In basing the Decision on its own assessment of fault the Government has taken an irrelevant consideration into account and thereby abrogated its responsibility to the victims to compensate them adequately for living with HIV and/or Hepatitis C.″ [10]
In contrast, the Defendant's Summary Grounds of Defence claimed that implementing Recommendation 6(h) would be impractical and unworkable, and asserted that: "...It would require the Defendant to abrogate decision-making responsibility for the level of ex gratia payments in the UK and defer to the resourcing decisions by the government of another sovereign state operating under different fiscal constraints and policy circumstances. This would itself be irrational and would constitute an unconstitutional delegation of power to a foreign government." [11]
The fundamental right of the British people to be governed by an elected legislature and the executive of the United Kingdom should not be violated by anything more than a vesting of law-making responsibility in a delegate power through an Act of Parliament. Parliamentary governing power and the responsibility for law-making should not be abrogated by the transfer of responsibility away from the United Kingdom. [12]
In McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003], at [17], Lady Justice Arden suggested that the principle that it was not permissible to transfer responsibility for law making and government away from the United Kingdom did not necessarily vitiate Parliamentary supremacy. [13] The reasoning given for the dismissal of this application suggests that abrogation of power [note 2] may be permissible in certain situations. A possible scenario may arise where Parliament may choose to implement prospective legislation that may not be fully in accordance with existing statute; [14] such as the European Communities Act 1972 or the European Communities (Amendment) Act 2002, and as such, Parliament's unfettered law–making power will not have fully transferred all rights to European bodies under the respective statutes.
Within the United Kingdom, the notion of a constitutional right exists despite there being no written constitution. [15] The scope of such a constitutional right is particularly narrow and the State cannot abrogate their power except where a specific piece of legislation or regulation specifically provides for the power to abrogate. As observed in Witham, R (on the application of) v Lord Chancellor [1997], Laws J made it clear that ″General words will not suffice.″ [16] This was applied in Cullen v Chief Constable of the Royal Ulster Constabulary [2003]. [17]
Under the principle of legality Parliament must not abrogate fundamental rights or values at common law by using ″general or ambiguous words″ and it cannot bestow power upon another body to abrogate such rights or values using similarly nonspecific words. [3] [18] The right to vote, as mentioned in Watkins v Home Office & Ors [2006], is an accepted example of a ′constitutional right′, and as such, in explicating legislation where such a right may have been ″proposed away″ it follows that the principle of legality would become engaged. [19]
″However, while acknowledging the force of Lord Reed′s powerful judgment, we do not accept that it follows from this that the 1972 Act either contemplates or accommodates the abrogation of EU law upon the United Kingdom’s withdrawal from the EU Treaties by prerogative act without prior Parliamentary authorisation.″
In R (Miller) v Secretary of State for Exiting the European Union [2017], it was held that an Act of Parliament would need to be in place before triggering the UK's exit from the EU under Article 50 of the Treaty on European Union. [21] There would needed to have been specific, clear wording for any exiting legislation to be interpreted as affording ministers the authority to withdraw from the EU under section 2 of the European Communities Act 1972 (UK). [22] The abrogation of powers came up in the UKSC′s reasoning since the government were not at liberty to use prerogative powers to change domestic law, nor were they able to use such powers to undermine any existing rights enshrined in primary legislation. If UK statute had been altered as a result of withdrawing from European Union, it would most likely have caused a fundamental change to the constitutional arrangements of the United Kingdom. [23]
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly used in the United Kingdom and other Commonwealth jurisdictions instead of "landmark case", as used in the United States.
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.
Thoburn v Sunderland City Council is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal.
Sir Stephen John Sedley is a British lawyer. He worked as a judge of the Court of Appeal of England and Wales from 1999 to 2011 and was a visiting professor at the University of Oxford from 2011 to 2015.
United Kingdom administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest", within three months of the grounds of the cause of action becoming known. By contrast, claims against public bodies in tort or contract are usually limited by the Limitation Act 1980 to a period of 6 years.
Robert John Reed, Baron Reed of Allermuir, is a Scottish judge who has been President of the Supreme Court of the United Kingdom since January 2020. He was the principal judge in the Commercial Court in Scotland before being promoted to the Inner House of the Court of Session in 2008. He is an authority on human rights law in Scotland and elsewhere; he served as one of the UK's ad hoc judges at the European Court of Human Rights. He was also a Non-Permanent Judge of the Court of Final Appeal of Hong Kong.
The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but principles have emerged over centuries from common law statute, case law, political conventions and social consensus. In 1215, Magna Carta required the King to call "common counsel" or Parliament, hold courts in a fixed place, guarantee fair trials, guarantee free movement of people, free the church from the state, and it enshrined the rights of "common" people to use the land. After the English Civil War and the Glorious Revolution 1688, Parliament won supremacy over the monarch, the church and the courts, and the Bill of Rights 1689 recorded that the "election of members of Parliament ought to be free". The Act of Union 1707 unified England, Wales and Scotland, while Ireland was joined in 1800, but the Republic of Ireland formally separated between 1916 and 1921 through bitter armed conflict. By the Representation of the People Act 1928, almost every adult man and woman was finally entitled to vote for Parliament. The UK was a founding member of the International Labour Organization (ILO), the United Nations, the Commonwealth, the Council of Europe, and the World Trade Organization (WTO).
The Law of Property Act 1989 is a United Kingdom Act of Parliament, which laid down a number of significant revisions to English property law.
The royal prerogative is a body of customary authority, privilege, and immunity attached to the British monarch, recognised in the United Kingdom. The monarch is regarded internally as the absolute authority, or "sole prerogative", and the source of many of the executive powers of the British government.
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.
Stone & Rolls Ltd v Moore Stephens[2009] UKHL 39 is a leading case relevant for UK company law and the law on fraud and ex turpi causa non oritur actio. The House of Lords decided by a majority of three to two that where the director and sole shareholder of a closely held private company deceived the auditors with fraud carried out on all creditors, subsequently the creditors of the insolvent company would be barred from suing the auditors for negligence from the shoes of the company. The Lords reasoned that where the company was only identifiable with one person, the fraud of that person would be attributable to the company, and the "company" could not rely on its own illegal fraud when bringing a claim for negligence against any auditors. It was the last case to be argued before the House of Lords.
The Data Retention and Investigatory Powers Act 2014 was an Act of the Parliament of the United Kingdom, repealed in 2016. It received Royal Assent on 17 July 2014, after being introduced on 14 July 2014. The purpose of the legislation was to allow security services to continue to have access to phone and internet records of individuals following a previous repeal of these rights by the Court of Justice of the European Union. The act was criticised by some Members of Parliament for the speed at which the act was passed through parliament, by some groups as being an infringement of privacy.
R (Nicklinson) v Ministry of Justice was a 2014 judgment by the Supreme Court of the United Kingdom that considered the question of the right to die in English law.
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R (Miller) v Secretary of State for Exiting the European Union is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government might not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union without an Act of Parliament giving the government Parliament's permission to do so. Two days later, the government responded by bringing to Parliament the European Union Act 2017 for first reading in the House of Commons on 26 January 2017. The case is informally referred to as "the Miller case" or "Miller I".
The UK Withdrawal from the European Union (Scotland) Bill 2018, colloquially known as Continuity Bill within the Scottish Parliament or the EU Continuity Bill within Scotland, provided for all matters devolved under the Scotland Act 1998 and subsequent legislation that are currently under the control of the European Union, to be repatriated to the Scottish Parliament upon 'exit day'. It was referred to as the Scottish EU Continuity Bill outwith Scotland, was a passed legislative bill by the Scottish Parliament with a stated view to prepare devolved elements of Scots law in view of the United Kingdom's withdrawal from the European Union.
R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, also known as Miller II and Miller/Cherry, were joint landmark constitutional law cases on the limits of the power of royal prerogative to prorogue the Parliament of the United Kingdom. Argued before the Supreme Court of the United Kingdom in September 2019, the case concerned whether the advice given by the prime minister, Boris Johnson, to Queen Elizabeth II that Parliament should be prorogued in the prelude to the United Kingdom's withdrawal from the European Union was lawful.
Carson & Another v Secretary of State for Work and Pensions [2003] EWCA Civ 797 was heard in the Court of Appeal in the Supreme Court on 17 June 2003 before Lord Justice Brown, Lord Justice Laws, and Lord Justice Rix.
R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 was heard by the Lords of Appeal in the House of Lords on 26 May 2005 before Lord Nicholls, Lord Hoffmann, Lord Rodger, Lord Walker, and Lord Carswell.
Principle of Legality. Public power may not be exercised to abrogate fundamental common law values, at least unless abrogation is required or empowered by clear primary legislation.
17. Lady Justice Arden: ...The supremacy of Parliament is not limited by a principle that Parliament cannot transfer or abrogate responsibility for law making and government in respect of the United Kingdom. It is not suggested that Parliament could not, if it wished, enact legislation in the future in contravention of the European Communities Act 1972 or the European Communities (Amendment) Act 2002.
According to the majority, this entailed the consequence that the prerogative could not be used to make 'fundamental change[s]' to the constitutional arrangements of the United Kingdom without parliamentary approval.