Legislation
The Retained EU Law (Revocation and Reform) Act 2023 received the Royal Assent on 29th June 2023. See Chapter 8, pages 203 – 204. Note that section 3 provides for the abolition of the supremacy of EU law from the end of 2023, and section 4 for the abolition of the general principles of EU law from the end of 2023. The role of the courts in relation to EU law is governed by section 6.
The Counsellors of State Act 2022 amends the Regency Act 1937 to include HRH the Earl of Wessex and HRH The Princess Royal among those to whom royal functions may be delegated. See Chapter 9, page 211.
The Ballot Secrecy Act 2023 amends the Representation of the People Act 1983, section 62 and provides that a person who is with another person at a polling booth, or near a polling booth when another person is in that booth, commits a criminal offence if he or she intends to influence that other person to vote in a particular way, or refrain from voting. See Chapter 12.
The Higher Education (Freedom of Speech) Act 2023 received the Royal Assent on 11th May 2023. See Chapter 19, page 465.
The Online Safety Bill (formerly the Online Harms Bill) has passed all remaining parliamentary stages (on 18 October 2023) and awaits the Royal Assent. See Chapter 19. The Bill, which seeks to provide protection for children online while also protecting freedom of expression, introduces new criminal offences. The Bill is also notable for its prolonged passage through Parliament. Introduced in 2021, it was subject to carry-over motions. In the House of Commons, the Bill was considered by Public Bill committee over seventeen sittings, with line by line examination taking place over thirteen sittings. The Bill was considered by the House of Lords between January and September 2023. Controversy over the Bill led to numerous Government amendments in both the Commons and Lords.
The Public Order Act 2023 received the Royal Assent on 2nd May 2023. See Chapter 20.
The National Security Act 2023 received the Royal Assent on 11th July 2023. See Chapter 21.
Case Law
Chapter 11 Devolution
The Supreme Court considered a challenge to the legality of the Northern Ireland Protocol in Allister v secretary of State for Northern Ireland [2023] UKSC 5. It was alleged that the Protocol arrangements resulted in the people of Northern Ireland being treated differently from the rest of the United Kingdom and therefore contrary to the Northern Ireland Act 1998, section 1 which required the consent of the people of Northern Ireland. The Supreme Court rejected that claim: section 1(1) of the 1998 Act related to the status of Northern Ireland as part of the United Kingdom or becoming part of the Republic of Ireland. It did not relate to other changes in status. The Protocol did not effect changes in status contrary to the 1998 Act.
Note that the Northern Ireland Assembly remains suspended.
Chapter 18: The Protection of Human Rights
Article 2 of the European Convention on Human Rights (incorporated into domestic law under the Human Rights Act 1998) protects the right to life. The duty to protect the right to life includes a duty imposed on the contracting state to take ‘appropriate steps to safeguard the lives of those within their jurisdiction’. In R (Maguire) v HM Senior Coroner for Blackpool & Fylde [2023] UKSC 20, the Supreme Court considered the scope of this duty.
According to the Court, there are two types of substantive positive obligations. The first is for the state to have laws and administrative systems in place to protect the lives of those in their territory (the ‘systems duty’). The second is an obligation to take steps to protect a specific person when aware that there is a risk to life ‘of a particularly clear and pressing kind’: this is the ‘operational duty’. In addition, there is the procedural obligation to take steps to establish whether a death is caused by a breach of Article 2 by public authorities.
Article 3 (the prohibition against torture, inhuman treatment etc) is at the centre of a challenge relating to the Government’s immigration policy. In R (SAA/Sudan) v Secretary of State for the Home Department, the Supreme Court considered appeals of asylum seekers who travelled to the UK in small boats. Their claims for asylum had been rejected and the Home Secretary decided that the claimants would be removed to Rwanda. Rwanda was deemed to be a safe third country to which asylum seekers could be removed under the Immigration Rules and the government’s agreement with Rwanda. The Court of Appeal allowed the claimants’ appeal (by a majority of two to one) on the basis that Rwanda had failed to give sufficient assurances that their removal to Rwanda would not involve a real risk of the claimants being returned to their home countries where they would face persecution or other inhumane treatment (‘refoulement’) contrary to section 6 of the Human Rights Act 1998 and Article 3 ECHR.
The Supreme Court considered the appeal over three days with judgment expected in December 2023. The Court is not concerned with the merits of the government’s Rwanda policy: it is solely concerned with the facts of the case and the legality of the proposed removals to Rwanda. Should the claimants lose before the Supreme Court, there remains the possibility of an application to the European Court of Human Rights.
Declarations of incompatibility
See page 430 of 15th edn.
In Morgan v Ministry of Justice [2023] UKSC 14, the Supreme Court set aside a Declaration of Incompatibility granted by the Court of Appeal (see [2021] NICA 67) on grounds of the prohibition on retrospectivity under Article 7.
Chapter 21 State Security
In R (NCCL) v Secretary of State for the Home Department [2023] EWCA Civ 926, the Court of Appeal considered the latest challenge in a long line of cases concerning the compatibility of the Investigatory Powers Act 2016 with Convention requirements (Articles 8 and 10) and EU law (see pages 509 – 510). There were eight grounds of appeal: the Court of Appeal (with one exception) found that the provisions challenged were Convention compliant and also did not violate EU law. On one issue (ground 3), the Court of Appeal found that the Divisional Court did not have sufficient evidence or information on how equipment interference warrants operate in practice to determine whether the legally-required safeguards operated in connection with bulk equipment interference warrants. That issue would be remitted to the High Court for determination.
Chapter 22 Judges and the Legal System
STATUTORY INTERPRETATION (page 560 ff)
In R (Project) v Secretary of State for the Home Department [2022] UKSC 3, Lord Hodge reiterated the purpose and process of statutory interpretation, emphasising the prime importance of the words and phrases used by Parliament in a statute.:
Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained.
… External aids to interpretation therefore must play a secondary role. Explanatory notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. …
But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. (At paragraphs 29 to 30)
For a recent application of the process of statutory interpretation discussed in Project above, see Darwell v Dartmoor National Park Authority [2023] EWCA Civ 927.
The Supreme Court returned to statutory interpretation in News Corporation UK and Ireland Ltd v Revenue and Customs [2023] UKSC 7; [2023] 2 WLR 513; [2023] 3 All ER 447. At issue was the interpretation of ‘newspapers’ for the purposes of taxation. In question was the interpretation of a statutory provision enacted before technological developments which were not anticipated at the time of enactment. The Court ruled that there was an ‘always speaking’ principle of statutory interpretation. Accordingly a statute should be interpreted taking account of changes in technology, social attitudes etc. even though these could not have been anticipated. However, the principle did not apply in the instant case: there were fundamental differences between newspapers and digital editions which fell outside the genus of newspapers. Accordingly digital editions could not attract a zero-rating for tax purposes.
On statutory interpretation and parliamentary ‘intent’ see PACCAR Inc v Competition Appeal Tribunal [2023] UKSC 28.
Chapter 24 Judicial Review
Error of law (page 623)
In Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, the Supreme Court, by a majority of three to two, allowed an appeal (see [2020] EWCA Civ 204) concerning the law of nuisance. The Court ruled that the trial judge had made three errors of law. While the Court of Appeal recognised these errors it proceeded, wrongly, to reject the appellants’ claim. The Supreme Court ruled that the Tate Gallery was liable in nuisance. There was a distinction to be made between a situation where the ordinary use of land causes a substantial interference with the use and enjoyment of neighbouring land, and the situation in this case where the Tate Gallery had constructed a viewing platform for the public in a built-up area of London and allowed hundreds of thousands of people each year to intrude on the ‘ordinary use and enjoyment’ of the adjacent flat owners’ property.
Chapter 25: Procedural impropriety
Consultation (page 653 ff.)
In R (Day) v Shropshire Council [2023] UKSC 8, the Supreme Court considered the procedural requirements imposed by statute on a Council when it intended to dispose of land subject to a statutory trust, the effect of which was to extinguish the public’s rights under the trust. The Local Government Act 1972 provided that a Council must advertise their intention to dispose of land for two consecutive weeks and then consider any objections received. A separate section of the Act stated that the disposal of land would not be invalid as a result of non-compliance with the consultation duty, thus apparently contradicting the earlier provision and removing the public’s rights. The Court examined the history of the provisions and held that Parliament had used very clear words setting out a Council’s obligations and conferred a ‘useful protection’ for people dealing in land with the authority. The publics’ rights could only be extinguished if the Council complied with the specific consultation requirements of the Act.