The Foundations of Public Law

Principles and Problems of Power in the British Constitution

by Keith Syrett

Update for Chapter 6: Shifting Patterns of Power in the Modern British Constitution

This update was compiled in January 2013

p.250, paragraph 3

The European Union Act 2011 affords the possibility for greater democratic involvement of the UK public in fundamental changes to the architecture of the EU by requiring that certain categories of measure adopted at EU level which have significant impact on the UK will require approval both by Parliament and by a national referendum. These include measures to amend or replace the existing TEU and TFEU (s.2), extension of the objectives and competences of the EU, conferral on an EU institution of power to impose a requirement or obligation on the UK, certain changes to Union voting rules etc. (s.3), British entry into a single currency, removal of UK border controls, common European defence and participation in a future European Public Prosecutor’s Office (s.6).

According to traditional Diceyan theory, these ‘referendum locks’ could be ignored by future Parliaments, although an adherent to the ‘manner and form’ approach to parliamentary sovereignty would consider them binding. It has been argued that the Coalition Government, in putting forward the Bill, did intend that future Parliaments should be bound: see M. Gordon and M. Dougan, ‘The United Kingdom’s European Union Act 2011: “who won the bloody war anyway?”’ (2012) 37 European Law Review 3, 24-25. It would appear that the 2011 Act, or provisions contained within it, can nonetheless be repealed without the need to hold a referendum: ibid, 25.

p.254, paragraph 1

Scotland will be holding a referendum on independence from the United Kingdom in the autumn of 2014. Since the Union of the Kingdoms of Scotland and England is a matter reserved to the Westminster Parliament under Schedule 5 of the Scotland Act 1998, it would not have been possible for the Scottish governmental institutions to act on their own in this regard. Accordingly, an agreement was signed between the UK and Scottish Governments providing for an Order to be made under section 30 of the Act, which allows Schedule 5 to be modified. Once the Order has been passed by both the Westminster and Scottish Parliaments and agreed by the Privy Council, it will be for the Scottish Parliament to promote legislation on the referendum, covering its date, the wording of the question, the franchise, rules on campaign financing and other rules. See HM Government/the Scottish Government, Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland (2012).

p.255, n.72

Such a referendum took place on 3 March 2011, and the proposal that the Assembly should have primary law-making power was approved. In consequence, the Assembly can now make laws on devolved matters without requiring the approval of the UK Parliament. The first such law, the National Assembly for Wales (Official Languages) Act 2012, received Royal Assent on 12 November 2012.

A Commission has also been established to review the present financial and constitutional arrangements in Wales. In a report published in November 2012, the Commission recommended that part of the budget for the Welsh Government should be funded from devolved taxation under its control, with devolution of income tax to be the subject of a future referendum. Any such changes to the taxation regime will require legislation by the Westminster Parliament. A further report, which will consider the powers of the National Assembly, including the boundary between devolved and non-devolved matters, will be published in spring 2014.

p.257, paragraph 1

The Regional Development Agencies were abolished on 1 July 2012.

p.257, n.85

The Commission on consequences of devolution for the House of Commons, chaired by Sir William McKay, a former Clerk of the House of Commons, was announced on 17 January 2012. It is expected to report by spring 2013.

p.258, n.88 This categorisation was confirmed in respect of the Government of Wales Act 2006 by R (on the application of Brynmawr Foundation School Governors) v Welsh Ministers [2011] EWHC 519 (Admin). See further update for Chapter 3.

p.259, n.89

See further update for Chapter 1.

p.262, n.99

As at January 2013, the Council had not yet been abolished. The Commons Select Committee on Public Administration has criticised the proposal for abolition, stating that independent oversight of the administrative justice system by an entity independent from government was valuable and should be continued in some form: Public Administration Select Committee, Future oversight of administrative justice: the proposed abolition of the Administrative Justice and Tribunals Council, HC 1621 (2010-12), [45].

p.263, paragraph 2

Her Majesty’s Courts Service and the Tribunal Service were integrated on 1 April 2011, forming HM Courts and Tribunals Service. This integration lends further weight to the classification of tribunals as a component of the judicial branch of government

p.266, n.122

The Infrastructure Planning Commission was abolished on 1 April 2012. Applications for major infrastructure projects are now submitted to a Major Infrastructure Planning unit within the Planning Inspectorate, which is an executive agency of the Department for Communities and Local Government. The final decision on major infrastructure projects now rests with a minister.

p.268, paragraph 3

The Law Commission has recommended abolition of the MP filter and replacement with a ‘dual track’ system which would allow complaint to be made directly to the PO or via an MP: Law Commission, Public Services Ombudsmen, HC 1136 (2011), [3.98]. The Government has not yet acted on this recommendation.

p.273, n.142

The Information Tribunal is now named the Information Rights Tribunal. It is part of the General Regulatory Chamber of the First-Tier Tribunal (see p.263 above).

p.274, n.150

Three further uses of section 53 of the Act have occurred, relating to Cabinet minutes on devolution (8 February 2012), potential risks arising from the restructuring of the National Health Service (8 May 2012) and correspondence between the Prince of Wales and ministers (16 October 2012). Guardian News & Media Limited has indicated that it intends to challenge the issuing of the certificate in the last of these cases in judicial review.

p.278, paragraph 1

For a useful discussion as to the impact of the Act on central government, see B. Worthy, ‘More Open but not More Trusted? The Effect of the Freedom of Information Act 2000 on UK Central Government’ (2010) 23 Governance 561.

Note also that the former Prime Minister Tony Blair described the Act as ‘utterly undermining of sensible government’ in his memoirs: T. Blair, A Journey (London: Hutchinson, 2010) 516. However, the Commons Select Committee on Justice has expressed the view that the Act is ‘a significant enhancement of our democracy’: Justice Committee, Post-legislative scrutiny of the Freedom of Information Act 2000, Volume I, HC 96-I (2010-12), [53].

p.282, paragraph 1

An Office for Civil Society, which works to support the ‘Big Society’ vision, was established within the Cabinet Office in May 2010. In its ‘mid-term review’, the Coalition Government listed establishment of Big Society Capital (a social investment bank), the Social Action Fund (to encourage social action and volunteering) and the National Citizen Service (a voluntary programme for young people enabling them to undertake projects to assist the community), as achievements of the ‘Big Society’ initiative: HM Government, The Coalition: Together in the National Interest (2013) 33. Other assessments of the programme have been considerably more critical: see eg ‘Big Society idea is dead says charities chief’: Telegraph, 7 January 2013.

p.283, n.184 Now the Localism Act 2011.