Public Laws

Essays
Conventions:
The British constitution has been made from several sources such as the Acts of parliament,
common law, international treaties and constitutional conventions.
Constitutional conventions are one of the important sources of the British constitutions
however they are not legally binding but plays a major role in the growth of the constitution.
Sir Ivor Jennings identified constitutional conventions as “flesh to the dry bones of law” which
helps the legal constitution in work and keep it in touch with growth of ideas.
A.V Dicey defined conventions as habits or practices which regulates the conduct of several
members of the parliament. In reality they are not laws because they are not enforced by the
courts. He also describes conventions as rules of constitutional morality.
John Mackintosh defined conventions as a generally accepted political practice, with a record of
successful application or precedent distinguishing conventions which impose duties from
matters of practice.
Marshall and Moodie described conventions as behaviors which are regarded or considered to
be binding by and upon those who operate the constitution but which are not enforced by the
law courts nor by the presiding officers in the Houses of parliament.
Certain points might emerge from the definitions above but the two important are that
conventions are rules which do not impose any legal obligations and no English court will grant
a remedy in respect of non-compliance and secondly conventions should be regarded as
constituting a value system for the guidance of those engaged in the process of government
and politics
Important conventions include the regulating exercise of the monarch of granting royal assent
to the parliament bill passed by both the Houses, the individual ministerial responsibility under
which a minister is answerable for the department that is allotted to him. The composition of
parliamentary committees should reflect each party’s representation in the House of Commons.
In order to distinguish between a mere past practice and a constitutional convention we must
apply the tripartite test proposed by Sir Ivor Jennings which includes three questions which
shall be satisfied for the identification of a constitutional conventions. Which are that what are
the precedents or is there any past practice of the convention, secondly are the actors in
believe that they are bound by the practice and is there a good to reason for the practice to
exist? Applying the test to one of the convention we will satisfy the answer if it is a
constitutional convention or not for example the regulating exercise of monarch of granting
royal to the bills drafted in the parliament, there is a past practice to the rule because it has
been practiced since the eighteenth century secondly we can assume that the Queen is bound
by the practice of granting the royal assent to the bills passed by parliament and is there a good
reason for the practice, Yes because it uphold the power of the monarch and it would be
undemocratic of the Queen to object granting royal assent to the bill drafted by the parliament
thus we can conclude that there is a constitutional convention.
However the second question of Jennings test helps in distinguishing between a mere practice
and a convention for example the practice of carrying minister’s official papers in a red file
cannot be regarded as convention because they are not bound by it and according to the prime
minister in 2015 there is “no good reason” for having red files thus it to conclude it was a
practice not a convention.
Constitutional conventions in my opinion may not have a legal drawback but a political
drawback because they aren’t laws that are breached but past practices which are followed for
example a minister can get backlash from media and opposition if he denies to give an account
for the ministry he has been given. Thus it concludes that there are political consequences
rather than legal consequences.
Professor N.W barbers argues that conventions and laws are two different types of spectrums
places for formalization of social rules. Laws lies at the formal end of the spectrum because for
breaching a law there are legal consequences but according barbers there is no definable point
in which a convention can be shifted into laws. According to him with judicial intervention
conventions can be crystalized into laws. An example can be seen as the “Sewel Convention”
was crystalized into law the following convention was about parliament not passing such
primary legislation relating to the areas where devolved legislation has competence exempt
with the agreement of that devolved legislature in the form of a legislative consent motion.
After the passing of Scotland Act 2016 it was a legal rule that the UK parliament will not
legislate regarding the devolved matters without the consent of Scottish parliament.

The enforcing of conventions can be highlighted in the case of Re resolution to amend the
constitution of Canada (1981) where the courts highlighted that the consent of provinces
involved in the amendment of constitution is a convention not a binding law, therefore it was
not enforceable.
Another example can be highlighted in the case of Attorney General v Jonathan cape where it
was ruled by the courts that prevention of publication of cabinet discussion is a convention
which was not recognized by the courts thus it was not enforceable.
The following examples illustrates that conventions are mere practices and not laws which are
not enforceable by the courts however, they can help to form a part of judges reasoning when
it comes to decision of a case.
Concluding from the debate above in my opinion conventions are an important part of growth
of the UK constitution which shall be followed and they shall not be codified because the
purpose of keeping them flexible is to help the parliament in growth of constitution moreover,
they happen to be useful in inconvenient timings in for example wars etc. secondly in my
opinion they cannot be codified because they differ so much in character that a systematic
change in a single code would be impossible and they have the advantage that they allow
constitutional change without the requirement of a formal change for example today the
government does not have to resign if it is defeated on a major party bill. Also they play an
important role in the constitution the politicians who are actually bound by the rules of
convention may have undermined these rules time to time however, they have generally
observed and abused these non-legal rules and it is desirable that the system should continue
without break from the past that is the way constitution in the UK has functioned.

Parliamentary Sovereignty:
The essential concept of parliamentary sovereignty is epitomized in the first two decades of the
eighteenth century as constitutional lawyer Sir William Blackstone quoting Sir Edward coke
said that “The power and Jurisdiction of the parliament is no transcendent and absolute, that it
cannot be confined, either be confined either for causes or persons within any bounds. To this
the parliament no authority upon earth can undo”
Prior to bill of right in Dr. Bonham’s case Lord Cooke highlighted that the parliament was
established newly therefore an outrageous Act could be challenged in the courts.
However, this position changed after the Glorious Revolution of 1869 “Bill of Right” which
firmly established the sovereignty of the parliament.
According to Dicey’s point of view the parliamentary sovereignty had three principal aspects as
Act of parliaments cannot be questioned by any authority including the courts, the parliament
is supreme law making body and no parliament can be bound by previous parliament and no
parliament can bind a future parliament.
This had two sides the positive and negative side. The positive side highlights the fact that
parliament can legislate on any subject matter. In purporting to show Dicey cited the opinions
of Cooke, Blackstone and De Holme and exhibited instances of the width of parliament’s power.
In my opinion theoretically the power of parliament remains supreme which can be illustrated
in number of examples in the 20th century for example in the case of Burmah oil Company the
parliament used law retrospectively. The parliament Acts 1911 and 1949 according to which a
bill can be passed without the approval of the House of Lords conditioned that one year shall be
passed between the two sessions of passing the bill from House of Commons. Similarly, in
Cheney v Conn the parliament was declared to be upper hand of law by the courts.
De Holme summarized the matter in a grotesque which has become almost proverbial “it is a
fundamental principal with English lawyers, that parliament can do anything but make a man
woman and man a woman” (The gender recognition Act 20004), in my opinion it perhaps
illustrates that even this may be a legal limitation on the omnipotence of the parliament.
However, the another positive side of parliament bounded by its predecessor in my opinion
cannot destroy its omnipotence as highlighted by professor ECS Wade in his observation that
“there is only one, limit to parliament’s legal power, it cannot detract from its own continuing
sovereignty” which was also viewed by Sir Robert McGarry in the case of Manual v A.G where
it was observed by him that “as matter of law the courts of England recognized Parliament as
being omnipotent in all some power save the power to destroy its own omnipotence”
This challenge was posted by Sir Ivor Jennings in which he contrasted two kind of authorities
according to Jennings the parliament can validly impose a manner and form limitations upon
itself. Which was supported by Geoffrey Marshall a case much relied on this was the case of
A.G for new south wales v Trethowan (1932) however, in my opinion there is no such authority
for the proposition that the UK parliament can impose a limitation on itself as the manner and
form
Geoffrey Marshall also relied on the speech of Lord Pearce in Bribery con v Ranasinghe in
which Lord Pearce clearly stated that “in the UK there is no governing instrument which
prescribes the law making powers and the forms which are essential to these powers”
The third positive aspect of Dicey’s view is the implied repeal which is that parliament can
repeal any previous law by expressly declaring that law to be repealed, however in addition to
this power to repealing from previous laws expressly, the parliament can impliedly repeal from
their statutes where judges are left with two statutes conflicting each other judges give effect
to the recent expression of the parliament’s will. The two cases leading this principle are
Vauxhall Estates Ltd v Liverpool Corporation (1932) and Ellen street Ltd v Minister of Health
(1934).
In my opinion a mechanism is being provided by the implied repeal by which the judges give
effect to the rule against parliament being bound by previous parliament which thereby gives a
contemporary sovereignty.
Apart from that the school of thought known as the political constitutionalism also gives the
upper hand to parliament according to which the wide discretion remains with the ministers.
They are held accountable by the parliament and kept in check by them too. The protection of
liberties is dependent on the parliament. According to the political constitutionalism the
judiciary shows deference to parliamentary sovereignty. In my opinion which concludes that
the system of political constitutionalism is based on the principle that the parliament and
executives are the best judges of public interest.
Concluding from the discussion above and discussing Dicey’s three aspects of parliamentary
sovereignty with having a positive side in my opinion we can conclude that the parliament is a
supreme authority in the UK and no other authority can question it. Which was highlighted by
Lord Hoffman in the case of R v secretary of state for the Home Department ex parte Simms
that the authority of parliament is supreme and can make or unmake any law, repeal the
previous Acts of parliaments, abolish any common law contradicting parliamentary sovereignty
with applying the laws retrospectively.

Limitations on parliament:
The parliament may be the supreme authority in the drafting of UK constitution which cannot
be challenged by any authority however, in my opinion there are certain limitations which
parliament imposed on themselves and which gives a challenge to their sovereignty
The first limitation which was imposed on parliament was the enrolled bill rule which is defined
as that courts can declare an Act a nullity where it is challenged on the grounds of procedural
irregularity, fraud on parliament and or either it is in conflict with the international laws.
Such as highlighted in the case of Edinburgh Railway v Wauchope (1842) the courts were
inquired to find that the legislation in question, a parliamentary Act was passed improperly and
was therefore declared invalid by the courts. As Lord Campbell stated that if there is an Act that
has passed the both Houses of the parliament and has received the Royal Assent, a court can
neither inquire into the manner in which it was introduced in parliament, neither in what was
passed during the progress through various parliamentary stages.
Discussing further the courts are not entitled to examine the proceedings of an Act of
parliament to show that the particular Act was passed due to fraud. Which can be illustrated in
the case of Prikin v British Railway Board which affirmed any legislation which received both
Houses of parliament approval and royal assent it no court can question the manner in which it
was introduced.

The second limitation that parliament imposed on itself is the membership with EU law and the
ECHR there is a presumption that parliament cannot legislate contradicting the principles of
international law and a statute would be interpreted as far as possible that it does not conflict
with international law (The Zamora 1916) however, in my opinion the legal of powers of
parliament to make laws contrary thereto remains and redress would have to be sought by
diplomatic action and not through the courts where a statute is clear and unambiguous the
“comity of nations” is irrelevant as per Lord porter in Theophile v Solicitor General (1950) the
provisions must be followed even if it contradicts the international law.
The membership EU law proposed two principles as the direct law which was established in the
case of Van Gendenloos which states that in the domestic courts of member states EU rights
can be enforced correspondingly it is obligatory on them to impose EU law. The supremacy of
EU law was illustrated in Costa v ENEL which clarified that in case of conflict between a national
and international law it will be the EU law that will get preference.
As highlighted in s.2(1) of EU law all powers from time to time will be given legal effect in UK
and will be used in the courts. And as per s.2(4) any law passed in UK must be in line with EU
law which was illustrated in case of Ex parte Factortame-2 where merchant shipping Act was
deemed to be override because it was in conflict with the EU law as highlighted by Lord Bridge
in his judgement that it is the duty of courts to look into a statute and override it if it is found to
be in conflict with EU law.
The third limitation imposed on parliament is the impact of HRA (Humans Right Act) 1998
incorporation of ECHR via HRA 1998 on national law endless convention rights were to be
enforced in national courts rather than in European Court of Human rights in Strasbourg also
known as the Strasbourg Court. However, in my opinion the Act specifically preserved the
sovereignty of the parliament by denying that judges have the power to declare an Act invalid
however if they find an Act incompatible with ECHR or HRA they can issue a declaration of
incompatibility thereby leaving it on the parliament to make necessary changes as illustrated in
s.4(6) the continuity if an Act conflicting with HRA will be deemed invalid and is not binding on
the proceedings in which it is made. The effect that this declaration has is that it places a legal
pressure rather than political pressure on the government, it will be unlikely from parliament in
my opinion to deliberately enact a legislation which is incompatible with convention rights as it
remained opened to them to do so. Illustrated in the case R(Animal Defenders International) a
declaration of incompatibility is a kind of warning to government and parliament that if in the
perspective of courts the UK is in breach of international obligations it is for them to decide to
do anything about it.
In the case of Ghaidan v Mendoza when Rent Act 1972 was in conflict with Article 14 of the
ECHR a declaration of incompatibility was issued and homosexual partners were recognized as
a married couple.
Concluding from the discussion above in my opinion the parliament although, is the supreme or
sovereign authority in the United Kingdom however, it itself has imposed certain limitations on
itself just as discussed above the membership of EU and incorporation of HRA and ECHR in the
domestic laws of UK as highlighted in CJS knight article there is a bipolar method of
parliamentary sovereignty in the United Kingdom which runs in line with UK law moreover, the
parliament has the power to withdraw from any international treaties they signed as we have
the example of BREXIT where they withdraw from the membership of EU. As quoted by Marine
le pen “Brexit has really broken a taboo. The Brits have shown us that you can leave the
European Union, and you can come out better” which clearly highlights the fact in my opinion
that the withdrawal from EU was a remarkable example of the British Parliament to show their
supreme or sovereign authority. Which cannot be challenged in any courts or whatsoever.
which was clarified by the Honorable prime minister of Great Britain Boris Johnson as he said
that “We have taken back control of laws and our destiny. We have taken back control of every
jot and tittle of our regulation in a way that is complete and unfettered.”
The Rule of Law:
The doctrine of rule of law depends upon the principle of legality which clearly emphasizes on
the basic rule that no can interfere the individual rights unless the state has given them the
legal authority to do so. As illustrated in the case Entick v Carrington trespassing to private
property was ruled to be illegal even for ministers.
The doctrine of rule of law in my opinion may be interpreted as philosophy or a political theory
which lays the fundamental principles for law or it works as a procedural device by which those
power rule under the law.
For many years this doctrine is considered to be primary mean of subjecting governmental
powers to control. The essence of the concept is the sovereignty or supremacy of law over man.
However, despite of the fact that it is considered to be one of the fundamental principles in all
states and its value in political and constitutional discussion its meaning is far from precise as
highlighted by DM Waker in the “The oxford companion to law” the doctrine of rule of law is a
concept of utmost importance but it does not have the context which is readily definable.
Which means that the doctrine may mean different things to different people at different
times. Having the understanding in liberal democracies has little relevance in a totalitarian
state.
In my opinion however, in liberal democracies rule of law implies more than a regulation by
law. According to Mathew (the rule of law in an Apartheid society) only in a country where the
doctrine is more than a ‘formal’ legal validity will subjects enjoy real protection from official
tyranny and abuse. According to the western philosophy and political school of thought
government according to law is therefore not necessarily equivalent to government under law.
However, a great divergence follows amongst the jurists and philosophers relating the greater
content.
One of the well-known approach is the content free approach proposed by Joseph Raz
according to Joseph Raz which focuses only on the procedure in which the law was made not on
the content or substance of the law in itself. In my opinion there is no doubt about this theory
has an important quality which is necessary to the rule of law the importance can be seen in
various judicial decisions and statutes for examples Lord Donaldson MR in Court of Appeal and
Lord Diplock in House of lords while giving a judgement on Merker Island shipping corporation
v Laughter (1983) emphasized on the importance of having clear laws.
Laws in UK are general, prospective and stable. The judiciary is independent and the rules of
natural justice are observed and emphasized by courts in deciding the cases.

The courts can review administrative action, including the prerogative powers after the GCHQ
case on the grounds of illegality, irrationality and procedural impropriety. The courts can even
look into a delegated legislation if it is ultra vires in their opinion as per R v Wood
Raz’s theory was supported by Paul Craig while addressing the House of Lord constitutional
report 2006-2007 he said that “If you wish to argue about the justness of society do so by all
means… it is however not…necessary or desirable to clock the conclusion in mantle of the rule
of law”

However, joseph raz’s theory only focused on the substantive nature of the doctrine which was
the focus on only the procedure of the law that was passed and focused less on the content of
the law.
Another theory was proposed by the Ronald Dworkin the content rich approached which along
with the substantive part as discussed above focuses on the content of the law too. Dworkin
also highlighted that laws are prospective in nature not retrospective, stable and the judiciary
shall be independent.
Lord Bingham had his own definition to rule of law and he further divided it into eight sub rules
according to Lord Bingham rule of law means that any authority public or private is equal under
the law and they are bound by it furthermore, the laws work prospectively and shall be publicly
administered in the courts.
According to Lord Bingham the laws must be accessible and shall be so far clear, predictable
and prospective. In my opinion this is a content free approach as highlighted by joseph raz
because it only highlights the fact that laws must be accessible and predictable it does not
mention about the content of the law.

The three main institutions played their role in protection of the doctrine of rule of law as the
judiciary upholds the doctrine by deciding cases and interpreting case laws as in the case of R
(Unison) v Lord Chancellor where Lord Chancellor retracted from his own decision of increasing
the tribunal fees. The judicial review also plays an important role in protection of this notable
doctrine as in The Belmarsh case highlighted by Lord Hoffman that it was justified for the
government to impose detention in case there is a public emergency but also it shall not be
applied in discriminatory manner.
The parliament can uphold the doctrine of rule of law by parliament having a say on statute
being passed determining the validity of the doctrine. The parliament can also uphold the
doctrine by holding accountability of the executives through their judgements. As Lord Hope
ruled in the case of Jackson v A.G “it is no longer right to say that parliamentary freedom to
legislate admits to qualification, the rule of law enforced by enforced by the courts in the
controlling principle upon which our constitution is based”
Lord Chancellor as an executive plays an important role in protection of the rule of law as
highlighted by Lord Phillips that the lord chancellor can uphold the rule of law by ensuring the
independence of judges moreover a question may rise that either government is contemplating
or is not in accordance with the doctrine of the rule of law. This is where Lord chancellor can
play a role as minister in protection of the doctrine of rule of law.

Concluding from the facts above the doctrine of the rule of law is most protected by judiciary in
my opinion in its highest form which can be seen in the cases above moreover, the Delhi
declaration 1959 also provided that a required representative and responsible government
provisions in law to ensure that a citizen’s wrongdoing shall have a remedy observance of
certain minimum standards regarding human rights and independence of the judiciary

Separation of powers:
Separation of powers in my modern constitutions are found in stronger and weaker form. It is
known as the doctrine which is fundamental for the organization of the state. In my opinion to
the concept of constitutionalism it preserves the appropriate allocations of powers and putting
limitations to those powers in order to differ the three institutions. The legislature, the judiciary
and the executive.
There are two theories to define this doctrine the “strict” theory and the “partial” theory

The strict theory was proposed by Baron Montesquieu which emphasized on complete
separation of powers which according to Montesquieu might lead into corruption and abuse.
Which was also supported by A.S Vile “the diffusion of authority among different centers of
decisions making is the authorities of totalitarianism or absolution”
Montesquieu greatly admired the Britain political arrangements in the eighteenth century and
the chapter where Montesquieu elaborated the doctrine known as ‘the constitution of England’
so in my opinion it is reasonable to assume that he regarded that as a model of the sort of
arrangement he was advocating, however, despite the impression conveyed by its title, the
author in my opinion did not purport to give an account of the British constitution but
presented an ideal type of constitution appropriate to a liberal state with occasional
complimentary reference to the British constitution or derogatory remarks concerning others,
moreover in my opinion it can be argued that relative to others in the early eighteenth century
at least, the British constitution did exhibit a separation.
In twentieth century writers on the constitution seem to speak almost with one voice denying
the doctrine of separation of powers in the strict sense is a feature of the British constitution. In
his principles of the British Constitutional Law in 1925 CS Emden employed the vocabulary of
separation of powers in a particular scheme which was designed in a manner to show
disconformity to the doctrine.

Sir Walter Begehor also criticized Montesquieu’s theory highlighting the English constitution
(1867) by saying that the three institutions are connected to each other and cannot function
without involving with one another.
The reasons in my opinion for separation of powers are of providing a template for
constitutional design for a country starting from scratch this doctrine provides guiding
principles related to allocations of functions to various institution, also further it its provides a
protection of liberty because if all powers are given to one person it would risk to abuse of
power and corruption and it provides efficiency in my opinion if powers are allocated to
different people then in my opinion the sensibly right kind of institution would work efficiently.
In the case of M v Home office (1994) Lord Templeman began his speech by rehearsing the
paradigm that parliament is the law maker which is carried by the executive into effect and
enforced by the judiciary. Highlighted in the case of Ex parte fire brigade union (1995) Lord
Mustill referred to the ‘peculiarly’ British conception of separation of powers that parliament,
executive and the courts each have their distinct and largely exclusive domain.
In order to explore if the separation of powers doctrine exist in the context of strict theory or
not we need to survey the extent to which the constitution of today. The legislative, the
executive and judiciary are separated or mixed. In my opinion it seems clear that if separation is
interpreted under strict theory as connoting a rigid compartmentalization then it hardly exists
in UK. Ministers who are members of the executive sit as members of the House of Commons
(some in House of Lords) which is a legislative body. Besides the ordinary courts there are
numerous administrative tribunals that decides the disputes and these administrative tribunals
comprise of civil servants who are part of the executive subordinate legislation.
However, if the doctrine is not interpreted literally in my opinion it can be argued that there are
aspects in the constitution reflecting the strict theory. The vast majority of executive that are
the civil servants were disqualified from being members of the House of Commons and under
the House of Commons Disqualification Act 1975 must resign their posts if they opt to stand for
election for the House of Commons. The legislature and the judiciary do not overlap in personal
or functions. Members of cabinet or other ministers are disqualified from taking judicial
appointments.

Moreover, after the passing of CRA 2005 (Constitutional Reform Act) and HRA 1998 (Humans
Right Act) it significantly in my opinion strengthened the concept of strict theory in the
constitution. The CRA 2005 also put an end to the role of Lord Chancellor as head of judiciary
and his role has been replaced by the Chief Justice of the Supreme Court. The ministry of justice
has been given the responsibility of Judicial Appointment Commission undertaken by the
Department of constitutional affairs. The Supreme Court has been set up under CRA 2005 which
in my opinion marks a complete separation between the legislature and the judiciary. The role
of the Home Secretary has also been replaced by the Judiciary now determining the tariff for
defendants sentenced to life imprisonment.
Concluding from the facts above in my opinion the theory of Montesquieu’s pure form or strict
form cease to exist however it can be argued that there are effects of his theory in the
constitution of UK. Which can be seen after the enactment of HRA 1998 and CRA 2005

Royal Prerogative:
The term royal prerogative applies to those ancient powers and immunities once exercised or
influenced by monarch personally and thought to be natural attribute of the monarch’s
constitutional and political pre-eminence which were left untouched by the conflicts and
political restructuring which occurred during the seventeenth century.
According to William Blackstone prerogative powers are those powers which are only entitled
to the king himself above all the other bodies and are applied to those rights and capacities
which the king himself alone can enjoy.
For example, the power of entering into contracts, giving loans, employing people should not
be considered as part of prerogative powers in my opinion because they can be exercised by
any person. The only powers that the king himself can enjoy such are declaring wars, giving
pardons, dissolution of the parliament and making of treaties were exclusively labelled to king
only and correctly labeled as prerogative powers.
According to Dicey prerogative powers are those powers which are functioned by the executive
without the authority of the Act of Parliament.
Irrespective of the definition prerogative powers may have as defined by Blackstone and Dicey
three features of prerogative powers are crystal clear in my opinion that they are non-
statutory, derived from common law and today (by constitutional convention) vast majority of
prerogative powers are functioned by Prime Minister, the cabinet and individual ministers.
However, the constitutional existence of these powers may raise two substantial constitutional
issues one of them which relates to the relationship between the government and judiciary
questioning which prerogative powers will the courts subject.
To judicial review and in under what circumstances and criteria will the courts intervene in
order to regulate the government activity. The political issues arise between the government
and Houses of parliament. In my opinion desirable that important political decisions such as
declaring wars, giving pardons, signing treaties shall be taken without the explicit prior approval
of the parliament.
There is a long history of courts that they have the power to determine a prerogative power’s
existence such as in the famous case of Proclaimations (1611)
The Burmah Oil (1965) is another good illustration of the courts willing to determine the
existence of prerogative powers and no such exemptions were applied to pay the owners of oil
fields.
The case of BBC v Johns (1965) illustrates that the courts did not allow the executive to create a
new prerogative power. The response clearly stated by Diplock LJ “it is 350 and a civil war too
late for the Queen’s court to broaden the prerogative”
However, the traditional view of courts was to once determine that the authority had been
acted within the scope or limits of the prerogative.
The House of Lord decision in the case of GCHQ for allowing reviewability replaced one
limitation by another. However, reviewability was not qualified in my opinion and it excluded
categories. Lord Roskill favored the prerogative powers following the excluded categories such
as declaring wars, disposal of armed forces, dissolution of parliament and appointment of
prime minister.
In the case of Ruddock (1987) it was held that the prerogative power issuing telephone tapping
can be reviewed.
In the case of Everett (1989) it was highlighted that courts are competent enough to review the
exercise of prerogative power of the secretary of state to issue passports, although the power
has been deemed to be related to foreign affairs and had traditionally been regarded as
unreviewable.
One of the strongest attack on the excluded categories was made in the case of Smith and
Others (1996) where the government argued that this matter was related to realm of defenses
and the force therefore it was not reviewable however, Smith LJ quenched the opportunity by
commenting that in his opinion these kind of matters will not be justiciable only if it involved
State Security.
The recent case of Abbasi v Anor (2003) the courts found that there was a mere fact that the
prerogative powers in relation to foreign affairs in issue was not enough. The courts will never
review or either question the power’s exercise.
Which was highlighted in the case of A.G v De Keyser (1920) where the executive works
according to the prerogative as appose by the statute the courts will not question the exercise
of the prerogative powers.
However, there was a certain change in the judicial attitude was foreshadowed in the case of
Laker Airways v Department of Trade (1976) by Lord Denning by stating that “seeing that the
prerogative is discretionary power to be exercised for the public good it follows that its exercise
can be examined by the courts just as any other discretionary powers”
However, until the watershed decision in Council for Civil Service Unions v The Ministers for
the Civil Service (GCHQ case), reviewed that the context and scope of prerogative powers
existed in the believe to represent the full extent of the judicial authority.
The approach of pragmatism is taken in order to convert the prerogative powers into statutes.
The idea of pragmatism is based on converting one power at a time. As highlighted by Lord
Hurd the Security Services Act (1989) and The Intelligence Services Act (1994) are examples of
prerogative powers that are converted in to the statutes.
In my opinion the idea of pragmatism is a good approach to conversion because if a
comprehensive conversion is taken that might lead into uncertainty, unclear views and would
be time consuming. Which is commonly known as the principled approach.
Concluding from the facts above in my opinion it can be said within a number of areas
remaining immune from review, there has been a significant extension on reviewing the
exercise of prerogative powers.

HRA 1998:
The protection of rights of people and freedom of citizens and others within their jurisdiction is
a fundamental duty obligated by the state. Majority of the domestic states fundamental rights
are protected under a liberty of a defined treaty and written constitution. Under United
Kingdom’s uncodified constitution rights and liberties are either protected by passing of certain
Acts passed to meet a certain use. For example, the Race Relations Acts prohibiting
discrimination or by the judges developing rights under common law.

Although the former position in UK suggested a legalization on Human Rights a discussion

document Home office,1976 the protection of human rights is organized different from various
countries. The difference is related to constitutional structure. The United Kingdom unlike its
neighboring European countries and commonwealth countries the UK in my opinion does not
owe present system of government either to a revolution like France or Struggle for
independence like Pakistan or India.
The rights of “Englishmen” traditionally been construed as merely resided liberty to act in the
circle of what the law does not prohibit. As highlighted by Sir Robert Megarry in Malone v
Metropolitan Police Commissioner “England is a country where everything is permitted except
for what is expressly forbidden” rights and freedom were regarded negatively in UK this was
the area remained after legal restrains were subtracted.
However, throughout the greater part of the twentieth century it was assumed that
fundamental rights were adequately protected. Parliament and Judiciary could be safely
entrusted to protection of individual rights.
There is no doubt in my opinion that the Human Rights Act 1998 (HRA 1998) is an instrument of
legislature holding great significance and perhaps the utmost importance domestic legal
development for a new generation.
However, it has faced certain criticisms due to the first controversial aspect of the Act is that
many rights incorporated permit interference The ECHR comprises of both absolute rights and
qualified rights. The absolute rights include Article (2,3,4,7,12 and 14) they do not permit
derogation however, the qualified rights Article (5,6,8,9,10 and 11) allow interference to some
extent
However, in my opinion the criticism seems to be very unbiased because interference is
permitted only under some circumstances which needs to be satisfied for example if it is in
accordance with the law or prescribed by the law. Which means that some specific rules are
identified by the state for authorization of interference.
Statutory regulation might not be necessary common law guideline may be adequate as per
Sunday Times v UK and Malone v UK. Public authorities must identify the interference
objective and the interference is only must in necessary democratic society.
Proportionality put colloquially is not to use a sledgehammer to crack a nut. In my opinion the
public authority has to strike a balance between the demands of general interest of the
community and the requirement of the protection of individual fundamental rights (Soering v
UK 1989)
Moreover, in support of the ECHR it was argued that if the UK even created a tailored made Bill
of Rights it would have been included in exceptions and provisions.
Secondly it has been argued that HRA 1998 is not a part of some wider constitutional
resettlement. In my opinion the framers of the Bill were at points for ensuring that it shall be
working within the existing constitutional arrangement. Parliamentary sovereignty still remains.
The HRA is on the mercy of any government committed to repeal it. In any manner it has not
been entrenched.
Another serious objection on the HRA is that it alters the doctrine of Parliamentary sovereignty
by abolition of the doctrine of implied repeal relating the statutes passed prior to the
enactment of the Act itself.
Thirdly the Act restricts the rights to enforce a claim to victims. A person who relying on a
breach of Convention Rights in my opinion is a victim of the unlawful act for the purposes of the
constitutional in Article 34.
Lastly the criticism on HRA 1998 is that the Act argues to give a restrictive definition of public
authorities the definition of public bodies includes government bodies like departments, local
authorities, Courts and Tribunals.
Houses of Parliament who may violate convention rights in my opinion for example exercise the
power for punishing for contempt or breaching privilege, which is a violation of Article 6(1)
ECHR
Moreover, the function test which is central to determine that whether a non-statutory body
can be regarded as public authority may be too restrictive, as can be illustrated from decisions
like R (Heather) v Leonard and most concerning YL v Birmingham City Council Others (2007)
where the function test left 300,000 elderly people were left to live in care homes unprotected
by HRA 1998
This case was a point of criticism for Joint Committee on Human Rights.
The major question raised in the matter relating to the impact which HRA is that whether it
horizontally imposes the rights.
According to Sir William Wade the Act does not create full and direct horizontal effect however,
individual would be able to rely on the convention rights. Many commentators agree with this
statement but HRA 1998 creates an indirect horizontal effect. The difficulty in my opinion lies in
whether the indirect effect is strong enough that judges may have the absolute duty to
interpret existing law to render it compatible with the convention.
It may be taken into account as advocated by Sir Phillipson G. according to him the courts have
still to reach a policy on this. In the case of Campbell MGN the court supported the weaker
revision. Earlier in the case of Douglas v Hallo (2001) Poroske LJ had taken the weaker
approach whereby Sedley LJ took the Hunt approach. In the case of Theakston v MGN (2002)
the courts followed Sedley approach the stronger approach. However, in the case of Wooder v
Feggetter (2002) Sedley LJ retreated from the stronger revision to the weaker revision.
Concluding from the discussion above in my opinion HRA 1998 does not limit the idea of
interpretation or interference. Despite of the many controversies HRA 1998 is the basic
fundamental principle in order to protect the rights and liberties of general public.