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Workshop 7.3 - Limits on executive power - Coggle Diagram
Workshop 7.3 - Limits on executive power
Requirement of legality
The principle in Entick v Carrington that governmental power can only be exercised on identifiable authority and in a lawful manner is fundamental to the exercise of restraint on the power of the executive.
Control by Parliament: Parliament decided whether government proposals become law, and it passes law which gives the executive powers within regulated restrictions.
Restraints by the courts: The executive's ultra vires actions are restrained by JR. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.
Protection of Convention Rights
One of the principal sources of legislation restriction over the use of executive power is the HRA.
The HRA is the principal source of protection against government interference with human rights.
If your Convention rights have been breached you can seek redress in a UK court which should attempt to interpret UK law in a way which is compatible with your convention right.
Public authorities must act in accordance with your Convention right (unless they have a defence).
Parliament will ensure that new laws are compatible with Convention rights (in most cases).
Proportionality
Some rights under the ECHR are absolute rights and the state can never restrict absolute rights.
Others are limited or qualified rights which the state can interfere with in some situations.
They can be interfered with if:
The restriction is in accordance with or prescribed by law.
There is a legitimate aim in restricting the right (public safety, prevention of crime, protection of health, national security)
The restriction is necessary in a democratic society.
Sunday Times v UK [1979-80] EHRR 245
ECtHR illustrates how the proportionality principle is applied (the case predates the HRA)
The drug thalidomide was prescribed as a sedative to pregnant women which later caused serious birth defects.
The Sunday Times published an article which exposed the tragedy.
A negligence claim was brought against the drug company.
A High Court order was obtained restricting further publication on the basis that it may affect negotiations between the victims and the drug company. The court also made it clear that further publication would constitute contempt of court.
The Sunday Times took the case to the ECtHR which held that the UK court order had infringed its freedom expression
The ECtHR didn't accept that there was a greater pressing social need which could justify the restriction on the story. The court order and threat of contempt proceeding were therefore a disproportionate reaction.
Derogation from Convention rights
In some circumstances, member states may need to take measures which temporarily suspend certain human rights, but not all, such as during times of war.
This is provided by Article 15 ECHR.
A & Others v SoS for Home Dept [2004] UKHL 56
Also known as the Belmarsh case.
This case illustrates how although the government can derogate from some ECHR rights in defined circumstances, it can only do so in accordance with the law.
In this case, the government derogated the right to personal liberty under Article 5(1) ECHR.
It was argued that this derogation was needed so that the government could initiate a policy of indefinite detention of foreign nationals suspected of being terrorists.
In accordance with Article 15, the Home Office had to show both that there was a public emergency threatening the life of the nation and that measures taken were strictly required.
The HoL found that the measures only targeted non-UK national was was not seen to be a proportionate or rational response because the threat was equally evident from UK nationals.
Constitutional statutes
Constitutional statutes are more difficult to repeal than ordinary legislation to provide an additional level of protection for constitutional rights.
Examples of constitutional statutes: Bill or Rights 1689; Act of Settlement 1701; Parliament Act 1911; Representation of the People Act 1918; European Communities Act 1972; Scotland Act 1998; Constitutional Reform Act 2005.
A constitutional statute is a statute that is about state institutions, and which substantially influences what those institutions can and may do.
Implied repeal
The doctrine of implied repeal is when a new statute, which is inconsistent with an existing statute, will automatically supersede the existing law without the need for an explicit provision.
Implied repeal doesn't apply to constitutional statutes.
This principle was confirmed in H v Lord Advocate [2012] UKSC 24, where the UKSC found that the Scotland Act 1998, is incapable of being altered otherwise than by an express enactment.
This is a partial restriction on executive power as if they want to repeal a constitutional statute they have to make it clear in statutory language which can lead to political resistance.
Common law constitutionalism
The common law is also a repository of individual rights.
Protection of important rights and freedoms is not simply a function of the law.