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The current edition of the subject guide was published in 2016.

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See: Allan, T. Law, democracy, and constitutionalism: reflections
on Evans v Attorney General (2016) 75(1) CLJ 38.

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The most recent UK-wide referendum was on Britains membership of
the EU. In June 2016, by a majority, the people of the United Kingdom
voted to leave the EU. The European Union Referendum Act 2015
made provision for the referendum.
The question put was whether Britain should remain in the EU or
whether it should leave the EU. The decision was to be taken by a
simple majority of the vote: no minimum percentage of the vote was
required for a binding decision, nor were any of the consequences of
leaving the EU spelled out. Holding a referendum was neither a
constitutional nor legal requirement: Parliament in its sovereignty,
could have decided to withdraw (or not) without a referendum. While
the referendum was advisory (rather than legally binding), the
government accepted that the decision was politically binding.1
The result of the referendum was as follows:
Leave 17,410742 51.9%
Remain 16,141,241 48.1%
The total electorate was 46,500,001. The turnout was 72.2%. Of the
twelve electoral regions, only three London, Northern Ireland and
Scotland voted to remain.2
See further the discussion below, under Chapters 3, 7 and 11.

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Following the referendum decision to leave the EU, the Government is
required to initiate the leaving process. This entails giving Notice to the
EU Council under Article 50 TEU (the Lisbon Treaty), which provides
for Notice to be given according to a Member States own

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constitutional arrangements. It was the Governments intention to give

notice under the Royal Prerogative.
This intention was challenged in the courts, culminating in the
Supreme Court decision in Miller v Secretary of State for Exiting the
European Union [2017] UKSC 5; [2017] 2 WLR 593. Also for the
Courts consideration was the claim that the devolved legislatures of
Northern Ireland, Scotland and Wales had to give their consent before
Notice was given under Article 50.
Eleven Justices considered the case, three of whom (Lords Reed,
Carnwath and Hughes) dissented. The Supreme Court ruled that
Notice could not be given under the Prerogative, and that the UKs
constitutional arrangements required the authority of an Act of
Parliament before Article 50 could be triggered.
This conclusion centred on the European Communities Act 1972
(ECA). Section 2 of the ECA does more than give effect to the EU
treaties by enabling EU law to enter domestic law. The effect of s.2 is
that EU law not only becomes a source of UK law, but also takes
precedence over all domestic sources of UK law, including statutes.
The 1972 Act also operates as a partial transfer of law-making powers.
In constitutional terms, the Court ruled, the effect of the 1972 Act was
unprecedented (see para.60). Withdrawal marks a fundamental
constitutional change which is inevitable once Notice is given (the
Court accepted that the Article 50 process is irreversible). Under the
1972 Act, Parliament endorsed and gave effect to the United
Kingdoms membership of what is now the European Union under the
EU treaties in a way which is inconsistent with the future exercise by
ministers of any prerogative power to withdraw from such Treaties (at
para.77).
Lord Neuberger PSC for the majority, at para.81, stated that:
It would be inconsistent with long-standing and fundamental
principle for such a far-reaching change to the UK
constitutional arrangements to be brought about by
ministerial decision or ministerial action alone. All the more
so when the source in question [the European Communities
Act 1972] was brought into existence by Parliament through
primary legislation, which gave that source an overriding
supremacy in the hierarchy of domestic law sources.
Accordingly, at para.82, it followed that:
a major change to UK constitutional arrangements ... must be
effected in the only way that the UK constitution recognises,
namely by Parliamentary legislation.
Contrast that judgment with that of Lord Reed, who stated at para.177,
that while accepting the importance of Parliamentary supremacy:
That principle does not, however, require that Parliament
must enact an Act of Parliament before the UK can leave the
EU. That is because the effect which Parliament has given to
EU law in our domestic law, under the 1972 Act, is inherently
conditional on the application of the EU treaties to the UK,
and therefore on the UKs membership of the EU. Further,
since the effect of EU law in the UK is entirely dependent on

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the 1972 Act, no alteration in the fundamental rule governing

the recognition of sources of law has resulted from
membership of the EU, or will result from notification under
Article 50. It follows that Ministers are entitled to give
notification under Article 50, in the exercise of prerogative
powers, without requiring authorisation by a further Act of
Parliament.
Furthermore, according to Lord Carnwath:
Service of an Article 50 notice will not and does not purport
to, change any laws or affect any rights It is merely the start
of an essentially political process of negotiation and decision-
making within the framework of that Article..... That process
will be conducted by the Executive, but it will be accountable
to Parliament.... there is no suggestion by the Secretary of
State that the process can be completed without primary
legislation in some form. (at para.259).
In response to the Miller case, the Government published the
Withdrawal from the European Union (Article 50) Bill 2017. The
Government also published a White Paper, The United Kingdoms exit
from and new partnership with the European Union, Cm 9417, February
2017, which sets out the Governments principal objectives.
The White Paper also explains that the Great Repeal Bill which will
formalise the consequences of withdrawal from the EU has three main
elements. First, it will repeal the European Communities Act 1972.
Secondly, the Bill will preserve EU law as it is at the time immediately
prior to leaving the EU. The UK Parliament and devolved
administrations will then be able to decide which EU laws should be
preserved, amended or repealed. Thirdly, the Bill will provide for
secondary legislation to make necessary changes to laws that would
otherwise not function effectively once we have left the EU.

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In R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2016] UKSC 35; [2017] 1 All ER 403, the Supreme
Court, by a majority of three to two, dismissed an application to set
aside the 2008 decision of the House of Lords [2008] UKHL 61]). The
application was based on the argument that significant documents had
not been disclosed to the House of Lords and that new evidence had
become available, justifying setting aside the 2008 decision. Lord
Mance, for the majority, stated that there was no evidence which led to
the conclusion that a different decision would have been reached in
2008. The decision of the House of Lords was affirmed.
In Mohammed v Ministry of Defence; Rahmatullah (No 2) v Ministry of
Defence [2017] UKSC 1; [2017] 2 WLR 287 the Supreme Court ruled,
unanimously, that acts of an inherently governmental nature in the
conduct of foreign military operations by the Crown were Crown acts
of state for which the government cannot be liable in tort. A Crown act
of state is an aspect of the royal prerogative relating to government
policy in international affairs. The issue was justiciable. However, the
doctrine of acts of state must be narrowly confined to a class of acts
which are governmental in nature, committed abroad and so closely
connected to the policy as to be necessary. It could not, as the

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Government accepted, apply to acts of torture or maltreatment of

detainees.

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In R (Public Law Project) v Lord Chancellor [2016] UKSC 39; [2016] 3
WLR 387 the Supreme Court, unanimously, held that subordinate
legislation intended to amend Schedule 1 to the Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (LASPO) was ultra vires and
invalid. Under the 2012 Act, Parliament had conferred on the Lord
Chancellor a power to amend primary legislation by means of
secondary legislation (a Henry VIII power). The Lord Chancellor
proposed to amend the 2012 Act so as to introduce a residency
requirement into the qualifying criteria for legal aid. Such a criterion
fell outside the scope of the Act. According to Lord Neuberger, the
draft Order was: ... attempting to do something which the legislature
never had in mind when enacting Part I of LASPO...,3
Frustrating the purpose of a statute through delegated legislation was
illustrated by R (Rights of Women) v Lord Chancellor [2016] EWCA
Civ 91; [2016] 1 WLR 2543. In this case the Lord Chancellor had the
power to make Regulations under LASPO. A Regulation amended in
2014 provided that in order to qualify for legal aid victims of domestic
violence (save for certain exceptions) had to produce documentary
evidence of violence within a 24-month period before applying for
legal aid. The purpose of the Act was to make legal aid available to
those in the most deserving categories, but also to save money by
withdrawing legal aid from other types of case. The Court of Appeal
held that the Regulation in question was within the power conferred by
s.12 of LASPO and therefore not ultra vires. However, the Regulation
had to be rationally connected to the purpose of the Act.
There were many instances where victims of violence were unable to
provide the documentary evidence required by the Regulation, even
though they satisfied the needs and merits test under the Act. In
addition, the Regulation did not offer any safety valve which would
enable victims to explain why they had been unable to provide the
documentation. The Court held that the Regulation frustrated the
purpose of the Act, was invalid and would be quashed.

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The 2016 referendum on whether Britain should leave the EU gave rise
to a legal challenge in R (Shindler) v Chancellor of the Duchy of
Lancaster [2016] EWCA Civ 469. In this case, the question was
whether the rules on the right to vote under the European Union
Referendum Act 2015 were subject to EU law and in particular the EU
rights relating to citizenship and free movement. The 2015 Act
provided that British nationals living in other Member States who had
last been registered to vote in a UK election more than 15 years ago
were excluded from voting in the referendum. The Court of Appeal
ruled that Article 50 of the Treaty on European Union provided that a
Member State could withdraw from the EU in accordance with its own
constitutional arrangements. The decision whether to withdraw or not

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was entirely for the people of the United Kingdom. The 2015 Act did
not fall within the scope of EU law and the claim failed.

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The Supreme Court ruled that provisions of an Act were outside the
legislative competence of the Scottish Parliament on the basis that the
provisions of the Act would breach the right to privacy guaranteed
under Article 8 of the European Convention in Christian Institute and
Others v Lord Advocate [2016] UKSC 51. The Children and Young
People (Scotland) Act 2014 made provision for a named person service
(NPS) in relation to children and young people in Scotland. Part of that
scheme provided for information sharing between relevant authorities
(for example National Health Service; Police Authority). The appellants
challenged the scheme by way of judicial review on the basis that it
was outside the legislative competence of the Scottish Parliament on
three grounds. First that it related to matters reserved to the UK
Parliament; secondly that it was incompatible with Convention rights
and/or thirdly that it was incompatible with EU law. The Supreme
Court allowed the appeal on the basis of the Convention challenge
(and the EU challenge in so far as it mirrored the ECHR challenge).
The provision could in practice result in a disproportionate interference
with the right to privacy of many children.
Note that the Scotland Act 2016 now gives statutory recognition to the
Sewel Convention (s.2 adding subsection (8) to s.28 of the Scotland
Act 1998).
The Scotland Act 2016 devolves significant further powers to the
Scottish Parliament to regulate itself and elections, over taxation and
welfare policy. The Scotland Act 2016 also recognises that the Scottish
Government is a permanent feature of the UK constitution and cannot
be abolished without the consent of the Scottish people.
The devolved administrations will be engaged in the process of
withdrawing from the EU through the Joint Ministerial Committee
(JMC), and the JMC sub-committee on EU Negotiations.

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See: Williams, R. Structuring substantive review (2017) Public Law
99.
In Wasif v Secretary of State for the Home Department [2016] EWCA Civ
82 the Court of Appeal examined the correct approach to deciding
whether permission to proceed should be granted, stating that it was
now generally accepted that the test was whether the application was
arguable or had a realistic prospect of success. But was there a
difference between that criterion and the criterion that an application
was totally without merit and therefore bound to fail? The Court of
Appeal ruled that there was a real distinction, although it was not
black and white. It was possible that oral argument might persuade a
judge who had refused permission on the papers that the application
did in fact have a realistic chance of success. Where, however, the
judge found that the claim was bound to fail and there was no chance
that an oral hearing would make a difference, permission should be
refused. It was essential that a judge refusing permission to apply give
reasons for the decision, and to give reasons for certifying an

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application as totally without merit separately from his or her reasons

for refusing permission.
Where granting permission for an application for judicial review would
make no difference to the circumstances of the claimant, the court was
entitled to refuse permission to review. The Supreme Court so ruled in
R (O) v Secretary of State for the Home Department [2016] UKSC 19.
The Court found that the Secretary of State had not applied her policy
in relation to the detention of mentally ill persons pending deportation
correctly and as a result the decision to continue to detain O was
procedurally flawed. However, if the Home Secretary had correctly
applied the policy, it would not have resulted in O being released from
detention any earlier than the date of her release on bail. If the
application for judicial review was permitted to proceed it would result
in nothing more than a declaration that her detention was unlawful
and the award of nominal damages. Accordingly, the judge was
entitled to refuse the application.
Time limits were reconsidered by the Court of Appeal in R (Gerber) v
Wiltshire Council [2016] EWCA Civ 84; [2016] 1 WLR 2593. In this
case planning permission had been granted for the building of a solar
farm. The claimant was not consulted prior to permission being
granted, on the basis that only those owners of properties adjacent to
the site had to be consulted. The claimant was not aware of the
planning permission and sought judicial review and an extension of
time in which to bring proceedings. The Court of Appeal ruled that the
planning authority had complied with its statutory duty on
consultation and that the claimant had no legitimate expectation of
being consulted. On the application for an extension of time and the
planning permission, the Court ruled that a balance had to be struck
between the objector, the developer and the public. Very special
circumstances would have to be present for an extension of time to be
granted. Here the claimant had no legitimate expectation to be
consulted and no legal basis for challenging the decision. The appeal
was dismissed.

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The duty to give reasons was considered by the Court of Appeal in
Horada v Secretary of State for Communities and Local Government
[2016] EWCA Civ 169; [2016] WLR(D) 148. In this case, the Secretary
of State had departed from a planning inspectors recommendation
that a compulsory purchase order should be refused. The appellants
represented a number of traders. The inspector considered that the
rights of the traders were insufficiently protected by the agreement
between the council and the developer. The Court of Appeal stated
that, where the relevant Minister upheld a planning inspectors
recommendation, it was implicit that he or she adopted the reasoning
of the inspector. Where, as here, the Minister took a different view it
was essential that he or she explained the reasons for the decision in
terms which the affected citizen could understand. The livelihoods of
the traders were put at risk by the proposed development and the

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Minister had to give a proper and easy to understand explanation for

rejecting the inspectors recommendation.4
The Supreme Court examined the duty to give reasons in R (Lee-
Hirons) v Secretary of State for Justice [2016] UKSC 46. The appellant
suffered from mental disorders and had been convicted of arson and
burglary. In light of his disorder, he was detained in a secure hospital
from which he was released, subject to conditions, in 2012. He was
subsequently recalled on the basis that his mental health had
deteriorated. This was the only reason given to the appellant. Fifteen
days after his recall, the appellant was provided orally with a full and
adequate explanation for his recall, but not provided with a written
explanation. His appeal was dismissed: the initial explanation for his
recall satisfied the demands of the common law and Article 5.

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R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs
[2016] UKSC 3; [2016] 1 WLR 509 which concerned the legality of the
appellants inclusion in the United Nations Security Councils list of
persons associated with terrorist organisations.
One of the grounds for appeal in Youssef was the standard of review.
Lord Carnwath JSC considered proportionality and expressed the hope
that an opportunity might arise in which a comprehensive review of
the tests to be applied to administrative decisions generally could be
undertaken by the Supreme Court. Referring to Lord Reeds dicta in
Pham (below), Lord Carnwath reiterated his support for a more flexible
approach where individual rights were at issue but also made the point
that in many cases, perhaps most, applying a proportionality test
would not lead to a different result from the traditional grounds for
judicial review especially where national security was involved
(because national security is an area where the courts are particularly
slow to interfere in executive decisions).
On proportionality you should also see the earlier cases of:
Pham v Secretary of State for the Home Department [2015]
UKSC 19; [2015] 3 WLR 1591 where the issue was whether the
Home Secretary could lawfully deprive the appellant of his
British citizenship;
R (Keyu) v Secretary of State for Foreign and Commonwealth
Affairs [2015] UKSC 69; [2015] 3 WLR 1665 which concerned
a claim which failed that the United Kingdom Government
was under a duty to hold a full investigation into the deaths of
civilians the State of Selangor in 1948; and
R (Lumsdon) v Legal Services Board [2015] UKSC 41; [2016] 1
All ER 391; [2015] 3 WLR 121 involved a challenge to a quality
assessment scheme (QASA) for advocates appearing before the
criminal courts.

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See: Sales, P. Right and fundamental rights in English law [2016] 75
CLJ 86.

^=N=
The Court of Appeal considered the scope of Article 1 in R (Al-
Saadoon) v Secretary of State for Defence [2016] EWCA Civ 811; [2017]
2 WLR 219. The Court considered the territorial scope of the
Convention in light of the earlier decisions of the European Court of
Human Rights in Bankovic v Belgium [2001] ECHR 890 and Al-Skeini v
United Kingdom (2011) 53 EHRR 18. The Court held that since the
European Convention was primarily territorial, the circumstances in
which a state could be expected to protect the Convention rights of
persons outside its territory were necessarily limited and could fairly
be described as exceptional. However, the courts were not restricted to
confine jurisdiction only to factual situations which had occurred. The
concept was one capable of evolving and would depend on the factual
situation of the individual.

^=R=
In Mohammed (Serdar) v Ministry of Defence (No 2) [2017] UKSC 2;
[2017] 2 WLR 327, the Supreme Court ruled that the United Kingdom
procedure for military arrest and detention in Afghanistan was
sufficiently precise and comprehensive so as to meet the standards
required by Article 5.

^=U=
In Weller v Associated Newspapers Ltd [2016] EWCA Civ 1176; [2016] 1
WLR 1541 the children of a famous musician who were on a private
outing with their father were photographed and subsequently
published. The Court of Appeal ruled that children did not have a right
to privacy by virtue of being a child, but that a child did have a
reasonable expectation of privacy and that special considerations
applied to children. Among these were the fact that an older child
would have a greater awareness of privacy than a very young child;
that interference with their right to privacy might give rise to safety
and security concerns. The lack of consent by parents should carry
particular weight. Furthermore, the court should give considerable
weight to the childs best interests. The decision to grant an injunction
against re-publication was upheld.
The Supreme Court upheld an interim injunction restraining
publication of the name of a celebrity before trial in PJS v News Group
Newspapers Ltd [2016] UKSC 26; [2016] 2 WLR 1253. This was despite
the fact that the identity of the person had already been disclosed in
the press in the United States and Scotland and on social media.
However, the Court ruled, there was no public interest in the legal
sense of the story and not to grant an injunction would add to further
disclosure and breaches of privacy. Accordingly, on balance,
continuation of the interim injunction was the best outcome.

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^=NQ=
Article 14 played a key role in the case of R (Johnson) v Secretary of
State for the Home Department [2016] UKSC 56; [2016] 3 WLR 1267.
The claimant was born to parents who were not married. Had they
been married he would have acquired British citizenship. Following
conviction for serious criminal offences, the claimant was ineligible for
citizenship and the Home Secretary decided to deport him as a foreign
criminal and certified that his human rights claim was clearly
unfounded. The Supreme Court ruled that citizenship was within the
scope of Article 8 and that accordingly Article 14 applied. Allowing the
appeal, the Court held that there was discrimination on the basis of an
accident of birth for which he was not responsible. The Supreme Court
also made a Declaration of Incompatibility in respect of s.41A(1) of the
British Nationality Act 1981.

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Before the Court of Appeal in R (Miranda) v Secretary of State for the
Home Department [2016] EWCA Civ 6, there were two principal
grounds of appeal. The first related to the use of the Terrorism Act
2000 Schedule 7 powers and whether, on the facts, the use of power
was proportionate. The second ground was that the power was
incompatible with the right to freedom of expression guaranteed under
Article 10 of the European Convention in relation to journalistic
material in that it was not subject to satisfactory safeguards against its
arbitrary exercise.
The Master of the Rolls, Lord Dyson, ruled that the use of the Sch 7
power was lawful and dismissed the appeal on that ground. However,
in relation to the Article 10 ground, the appeal was allowed in part: the
use of Sch 7 in relation to journalistic material did not have sufficient
safeguards.
The Court declared that the stop power in Sch 7, para.2(1) was
incompatible with Article 10. It was for Parliament to provide the
protection.

q=f~=m=^=OMNS=
The Investigatory Powers Act (IPA) is a wide-ranging Act introduced in
response to the reviews of existing laws relating to investigatory
powers. The Act is stated to be compatible with Convention rights.
The IPA updates the legal framework relating to communications and
data about communications. The Act is in nine parts.
Part 1 defines interception and sets out offences relating to the
unlawful interception and acquisition of communications data.
Part 2 relates to targeted interception. It provides for
warrants for the interception of communications or
examination of communications. It repeals and replaces the
existing provisions in the Regulation of Investigatory Powers
Act 2000 (RIPA).
Part 3 provides for authorisations, replacing a mostly
replicating Chapter 2 of Part 1 of RIPA.

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Part 4 relates to the retention of communications data,

replacing s.1 of Data Retention and Investigatory Powers Act
2014 (DRIPA).
Part 5 deals with equipment interference interfering with
computer equipment to obtain communications, information or
equipment data. This power is currently regulated under the
Intelligence Services Act (ISA) 1994 and in relation to police
powers, the Police Act 1997.
Part 6 relates to powers of the security and intelligence
agencies to intercept communications, conduct equipment
interference and obtain bulk communications data. Where the
communications are overseas-related, the Act allows the
interception in bulk. Bulk data includes two forms of data:
bulk personal datasets and bulk communications data.5 Bulk
personal datasets are sets of personal information about a large
number of people, most of whom are of no interest to the
security services. Examples include the electoral roll, telephone
directories and travel-related data. The only data that will be
examined relates to those of interest to the services. Bulk
communications data is data about communications, not the
substance of those communications. Examples include the
subscriber to a telephone service or an itemised bill.
Part 7 clarifies and provides additional safeguards for the
security and intelligence agencies, providing for an
authorisation process whereby a warrant of the Secretary of
State must be approved by a Judicial Commissioner before it
can be issued (see further below).
Part 8 provides a new oversight regime. The four existing
Commissioners the Intelligence Services Commissioner, the
Interception of Communications Commissioner, the Chief
Surveillance Commissioner and the Investigatory Powers
Commissioner for Northern Ireland will be replaced by a
single new Commissioner: the Investigatory Powers
Commissioner (IPC). The IPC will have greater powers and
resources than existing commissioners. The IPC will be a senior
judge, supported by a number of Judicial Commissioners (also
senior judges) undertaking authorisation or oversight and
inspection functions.
Part 9 contains miscellaneous and general provisions.
In relation to the Investigatory Powers Tribunal, the only challenge
which can be brought against its decisions is to the European Court of
Human Rights. The Investigatory Powers Act 2016 (IPA) now provides
for a right of challenge to a higher court within the United Kingdom.

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