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Chapter

Cover Public Law

14. Delegated Legislation  

This chapter is about delegated legislation, also called ‘subordinate’ and ‘secondary’ legislation. It considers why the constitution allows ministers (part of the executive) to make such legislation and the process by which it is made. It examines a case study on a controversial attempt by the government to abolish numerous institutions through powers conferred by the Public Bodies Act 2011.

Chapter

Cover Complete Public Law

4. The Rule of Law  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the extension of detention without trial; the developing body of anti-terror legislation; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies and whether their actions conform to the Human Rights Act 1998.

Chapter

Cover Public Law

13. Delegated Legislation  

This chapter is about delegated legislation, also called ‘subordinate’ and ‘secondary’ legislation made by UK ministers. Ministers use delegated legislation for a variety of purposes: to bring sections of Acts of Parliament into force; to fill in the detail of frameworks created by Acts of Parliament; and, most controversially, to repeal and amend Acts of Parliament. It considers why the constitution allows ministers (part of the executive) to make this type of legislation and the process by which it is made. It includes two mini case studies; on a controversial attempt by the government to abolish numerous institutions through powers conferred by the Public Bodies Act 2011; and the law-making powers given to ministers by the European Union (Withdrawal) Act 2019.

Chapter

Cover Public Law Directions

17. The Human Rights Act 1998  

This chapter addresses the Human Rights Act 1998. The Human Rights Act provides two ways for the courts to ensure compliance with Convention rights: where legislation is not human rights-compliant; and where a public authority has acted incompatibly with an individual’s rights. By providing a new benchmark for measuring UK legislation for compatibility with Convention rights, the Act gives judges a powerful interpreting role which effectively allows them to review Acts of Parliament. At the same time, the Act was carefully drafted to respect and preserve parliamentary sovereignty and does not give the UK courts power to invalidate, overrule, or strike down an Act of Parliament that is incompatible with a Convention right; and while the Human Rights Act has special status as a constitutional statute, it is not entrenched and cannot override other statutes.

Chapter

Cover The Changing Constitution

2. Parliamentary Sovereignty in a Changing Constitutional Landscape  

Mark Elliott

Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.