Abrogation in public law

Last updated

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]

Contents

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]

Delegation of responsibility

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]

Constitutionality

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.

Scope of constitutional right

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]

Principle of legality

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]

Prerogative powers and abrogation

″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.″

— UKSC judgment in Miller [20]

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]

See also

Notes

  1. ↑ According to Laws J in R (Misick) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWCA Civ 1549 at [12], ″Parliament's power to make any law of its choosing is unconfined.″ [5]
  2. ↑ Parliament′s responsibility for law making and government.

Related Research Articles

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.

<span class="mw-page-title-main">Human Rights Act 1998</span> Act of Parliament of the United Kingdom

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.

Sir Patrick Elias, PC, is a retired Lord Justice of Appeal.

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.

<span class="mw-page-title-main">Stephen Sedley</span> British lawyer

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.

<span class="mw-page-title-main">United Kingdom administrative law</span>

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.

<span class="mw-page-title-main">Robert Reed, Baron Reed of Allermuir</span> President of the Supreme Court of the United Kingdom

Robert John Reed, Baron Reed of Allermuir, is a British 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.

<span class="mw-page-title-main">United Kingdom constitutional law</span> Law that constitutes the body politic of the United Kingdom

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).

<span class="mw-page-title-main">Royal prerogative in the United Kingdom</span> Privileges and immunities of the British monarch

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.

<span class="mw-page-title-main">Constitution of the United Kingdom</span> Principles, institutions and law of political governance in the United Kingdom

The constitution of the United Kingdom is the set of rules that make up the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, the constitution is not codifed, but is written into thousands of statutes and court cases, and found in unwritten political conventions and social consensus. The UK Supreme Court recognises principles, that guide the constitution, including parliamentary sovereignty, the rule of law, democracy, and upholding international law. It also recognises that some Acts of Parliament have special constitutional status. These include Magna Carta, which in 1215 required the King to call a "common counsel" to represent people, to hold courts in a fixed place, to guarantee fair trials, to guarantee free movement of people, to free the church from the state, and to guarantee rights of "common" people to use the land. After the Glorious Revolution, the Bill of Rights 1689 and the Claim of Right Act 1689 cemented Parliament's position as the supreme law-making body, and said that the "election of members of Parliament ought to be free". The Treaty of Union in 1706 and the Acts of Union 1707 Kingdoms of England, Wales and Scotland, the Acts of Union 1801 joined Ireland, but the Irish Free State separated after the Anglo-Irish Treaty in 1922, leaving Northern Ireland within the UK. After struggles for universal suffrage, the UK guaranteed every adult citizen over 21 years the equal right to vote in the Representation of the People Act 1928. After World War II, the UK became a founding member of the Council of Europe to uphold human rights, and the United Nations to guarantee international peace and security. The UK was a member of the European Union, joining its predecessor in 1973, but left in 2020. The UK is also a founding member of the International Labour Organization and the World Trade Organization to participate in regulating the global economy.

Compulsory purchase is the power to purchase rights over an estate in English land law, or to buy that estate outright, without the current owner's consent. In England and Wales, Parliament has granted several different kinds of compulsory purchase power, which are exercisable by various bodies in various situations. Such powers are meant to be used "for the public benefit". This expression is interpreted broadly.

<span class="mw-page-title-main">Nicholas Underhill</span> Appeal Court judge in England and Wales

Sir Nicholas Edward Underhill, styled The Rt Hon. Lord Justice Underhill, is a British judge of the Court of Appeal of England and Wales.

<span class="mw-page-title-main">Data Retention and Investigatory Powers Act 2014</span> United Kingdom legislation

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.

<span class="mw-page-title-main">British Post Office scandal</span> British legal and political scandal

The British Post Office scandal is a miscarriage of justice involving the wrongful civil and criminal prosecutions of an unknown or unpublished number of sub-postmasters (SPMs) for theft, false accounting and/or fraud. The cases constitute the most widespread miscarriage of justice in British legal history, spanning a period of over twenty years; aspects of the scandal remain unresolved.

<i>R (HS2 Action Alliance Ltd) v Secretary of State for Transport</i>

R v Secretary of State for Transport [2014] UKSC 3 is a UK constitutional law case, concerning the conflict of law between a national legal system and European Union law.

<i>R (Miller) v Secretary of State for Exiting the European Union</i> Constitutional decision of Supreme Court

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.

<i>Carson & Another v Secretary of State for Work and Pensions</i>

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.

<i>R (Carson) v Secretary of State for Work and Pensions</i>

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.

References

  1. ↑ "Definition of abrogate verb". Oxford Learner′s Dictionaries. Oxford University Press. 2020. Retrieved 2020-04-05.
  2. ↑ "Abrogate English Definition". Cambridge Dictionary. Cambridge University Press. 2020. Retrieved 2020-04-05.
  3. 1 2 Fordham, Michael (July 2012). "<P35>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 402. ISBN   9781849461597. 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.
  4. ↑ R (Anderson) v. Secretary of State for the Home Department [2002] UKHL 46 at para. 39, [2003] 1 AC 837
  5. ↑ Fordham, Michael (July 2012). "<P7>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 82. ISBN   9781849461597.
  6. ↑ R v. Lord Chancellor. ex p Witham, 575 , 581E(QB1998)("Laws J: In the unwritten legal order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate...").,
  7. ↑ [(Serbia) v. The Secretary of State for the Home Department] [2009] EWCA Civ 630 at para. 60, [2010] Q.B. 633
  8. ↑ Salomon v Commissioners of Customs and Excise, 2QB116 , 143–144(1967)("(Diplock LJ) If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty′s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v. Murray; White Star Line and U.S. Mail Steamers Oceanic Steam Navigation Co. Ltd. v. Comerford [1931] A.C. 126; sub nom. The Croxteth Hall; The Celtic, 47 T.L.R. 147, H.L.(E.), and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty′s own courts...").
  9. ↑ R (March) v Secretary of State for Health , 765BMLR116 , 57(EWHC (Admin)2010).
  10. ↑ Michelmores, LLP (18 August 2009). "Claim form (LNV/jeh/54660/4): For the Personal Attention of Rt Hon Andy Burnham MP". Letter to Secretary of State for Health.
  11. ↑ Whipple, Philippa; Beattie, Kate (13 November 2009). "Defendant's Summary Grounds of Defence: R (on the application of Andrew Michael March) -v- Secretary of State for Health - CO/9344/09". Letter to Michelmores LLP. p. 10.
  12. ↑ McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs, 384 , 6(EWCA (Civ)2003)("This state of affairs is said to violate basic constitutional principles to be found either in the common law or in a series of constitutional statutes beginning with the Magna Carta. The essence of it is that the British people are to be governed by the legislature and the executive of the United Kingdom under the Queen, and enjoy the fundamental right to participate in government by the electoral process.").
  13. ↑ McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384 at 17, [2003] EWCA Civ 384
  14. ↑ "McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384". Casemine. 5 March 2003. Retrieved 2020-08-29. 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.
  15. ↑ Watkins v Home Office & Ors, 17 , 59(UKHL2006).
  16. ↑ House of Lords (10 July 2003). "Judgments – Cullen (Appellant) v. Chief Constable of the Royal Ulster Constabulary". Parliament.co.uk. Parliament of the United Kingdom. Retrieved 2020-05-18.
  17. ↑ Fordham, Michael (July 2012). "<P14.2>". Judicial Review Handbook (Sixth ed.). Oxford: Hart Publishing Ltd. p. 156. ISBN   9781849461597.
  18. ↑ AXA General Insurance Ltd & Ors v Lord Advocate & Ors (Scotland) [2011] UKSC 46 at para. 152, 2011 SLT 1061, [2011] UKSC 46, (2011) 122 BMLR 149, 2012 SC (UKSC) 122, [2011] 3 WLR 871, [2011] UKHRR 1221, [2012] 1 AC 868, [2012] HRLR 3(2011), Supreme Court (UK)
  19. ↑ Watkins v Home Office & Ors , 17 , 61(UKHL2006)("Lord Rodger of Earlsferry: "Although embodied in a statute, in a system of universal suffrage today the right to vote would fall within everyone′s notion of a ″constitutional right″. And, doubtless, the principle of legality would apply in construing any statutory provision which was said to have abrogated that right.").
  20. ↑ R (Miller) v Secretary of State for Exiting the European Union , 5, 77(UKSC2017).
  21. ↑ "Exiting the European Union". Blackstone Chambers. London. 24 January 2017. Retrieved 2020-05-23.
  22. ↑ Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 at para. 76, [2017] WLR(D) 53, [2018] AC 61, [2017] HRLR 2, [2017] 2 CMLR 15, [2017] UKSC 5, [2017] 1 All ER 593, [2017] 2 WLR 583, [2017] NI 141(24 January 2017), UKSC
  23. ↑ Aroney, Nicholas (2017). "R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms". Modern Law Review . 80 (4): 726–745. doi:10.1111/1468-2230.12282. S2CID   157937903 . Retrieved 6 August 2022. 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.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.