DIVERSE VOICES IN PUBLIC LAW

Diverse Voices

Series Editors: Se-shauna Wheatle, Durham University and Jonathan Herring, University of Oxford

As law faculties, academics and students increasingly realize that their reading lists are dominated by white, male, hetero-normative perspectives, the Diverse Voices series gives students an opportunity to engage with voices that have so often been silenced: the voices of black and racialized people, women, disabled, LGBTQI, working class and neuroatypical people. Diverse Voices presents a ground-breaking platform for critiquing the law from the perspective of minoritized and marginalized groups and debating and understanding the impact of the law on these different groups.

Forthcoming

Diverse Voices in Tort Law

Edited by Kirsty Horsey

Advisory board

Sharon Cowan, University of Edinburgh

Fiona de Londras, University of Birmingham

Didi Herman, University of Kent

Anna Lawson, University of Leeds

Ambreena Manji, Cardiff University

Stu Marvel, Emory University

Roger Masterman, Durham University

Alex Sharpe, Keele University

Iyiola Solanke, University of Leeds

Find out more at

bristoluniversitypress.co.uk/diverse-voices

DIVERSE VOICES IN PUBLIC LAW

Edited by

Se-shauna Wheatle and Elizabeth O’Loughlin

First published in Great Britain in 2023 by

Bristol University Press

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© Bristol University Press 2023

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Contents

  • Table of Cases, Statutes, Statutory Instruments and Other Jurisdictions ix

  • Notes on Contributors xiv

  • Series Editors’ Preface xv

  1. Introduction

    Se-shauna Wheatle and Elizabeth O’Loughlin 1

  2. Part IConstitutional Structures and Concepts
    1. 1The Rule of Law and Racial Difference in the British Empire

      Kanika Sharma 15

      • Introduction 15

      • A short history of the rule of law 16

      • Modern conceptions of the rule of law 19

      • Law, the rule of law and the British Empire 20

      • The rule of law and the rule of colonial difference 25

      • The rule of law and the rule of empire: an inherent incompatibility 31

      • Conclusion 33

    2. 2Parliamentary Supremacy and the People

      Donal K. Coffey 35

      • Introduction to the Study of the Law of the Constitution 36

      • The Political Constitution I: 1911 and Home Rule 38

      • The ‘manner and form’ theory 41

      • The Political Constitution II: one convention is rejected, is another adopted? 44

      • The process of judicialisation 46

      • Conclusion 52

    3. 3Strong Executive, Weak Parliament?

      Paul F. Scott 53

      • Introduction 53

      • What is the executive? 55

      • Strong executives 57

      • The executive and Parliament 61

      • The executive’s ‘right to govern’ 63

      • Strong Parliament, strong executive 67

      • Conclusion 68

    4. 4Legislating for Seismic Events: An Examination of the Role of Delegated Legislation

      Alexandra Sinclair 71

      • Introduction 71

      • What is delegated legislation? 72

      • The place of delegated legislation in the UK’s constitutional order 73

      • Key critiques of delegated legislation in the UK 78

      • Brexit delegated legislation 82

      • COVID-19 statutory instruments (SIs) 86

      • Conclusion 89

    5. 5Scotland, Devolution and Independence: A Union at its Limits?

      Coree Brown Swan 91

      • Introduction 91

      • Devolution, power and parliamentary sovereignty 92

      • Understanding Scottish devolution 95

      • A constitutional chain reaction? 104

      • Brexit and Scotland 108

      • Conclusion 115

    6. 6Diverse Voices in the Judiciary

      Alysia Blackham 119

      • What do we mean by ‘judicial diversity’? 120

      • Why focus on judicial diversity? 121

      • Progress towards diversity 123

      • Achieving judicial diversity 128

      • The future of judicial diversity 139

  3. Part IIThe Individual and the State
    1. 7The Begum Case, Discretion and Parliamentary Sovereignty: Unmaking the Constitutional Subject

      Devyani Prabhat 143

      • Introduction 143

      • Cancellation, the Begum case and minority ethnicity citizens 144

      • Parliamentary sovereignty and judges 148

      • The Begum case, discretion, deference and institutional competence (expertise) 151

      • National security: special barriers to review 154

      • Unlocking sovereignty for minority rights 160

      • Conclusion 161

    2. 8Racialisation in UK Counterterrorism Law and Policy

      Tufyal Choudhury 163

      • Introduction 163

      • Racialisation 164

      • The definition of terrorism 167

      • ‘Pre-emptive’ offences 171

      • Radicalisation 175

      • The Prevent strategy 177

      • Conclusion 183

    3. 9Racism, Law and the Police: Over 50 Years of Anti-discrimination Law and Policing

      Ben Bowling and Shruti Iyer 185

      • Introduction 185

      • Understanding racism and policework: a theoretical framework 187

      • Law: linking immigration law and ‘race relations’ law 188

      • Work: police practice while exempt from anti-discrimination law 193

      • Democracy: the public demand to hold the police accountable 195

      • Hegemony: the failures of anti-discrimination law 199

      • Conclusion 203

    4. 10The Administration of Social Security Benefits: Gendered Implications

      Ciara Fitzpatrick 205

      • Introduction 205

      • Social citizenship rights, gender and the male breadwinner model 207

      • Women and benefit administration 208

      • The administration of Universal Credit, gender and social citizenship 210

      • A single payment 212

      • Welfare conditionality 213

      • The benefit cap 215

      • The two-child limit 218

      • Conclusion 221

    5. 11Administrative Violence: First-Instance Decision Making in Sexual Diversity Asylum Claims

      Alex Powell 223

      • Introduction 223

      • Administrative violence 224

      • The law, policy and politics of refugee status determination in the UK 227

      • Bureaucracy, chaos and delay at first instance 232

      • Conclusion 240

  • A More Diverse Public Law: Suggested Further Reading 243

  • Index 247

Table of Cases, Statutes, Statutory Instruments and Other Jurisdictions

Cases

  • A v Secretary of State for the Home Department [2004] UKHL 56 155, 158

  • Attorney-General for the State of New South Wales v Trethowan [1931] 44 CLR 394 42, 43

  • Beghal v DPP [2015] UKSC 49 171

  • Begum v Secretary of State for the Home Department [2021] UKSC 7 8, 143–62

  • Bradley v Baylis (1881) 8 QBD 195 37

  • Campbell v Hall (1774) 1 Cowp 204 24

  • Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, [1985] AC 374 58, 155

  • DA and Others v Secretary of State for Work and Pensions [2019] UKSC 21 207, 217

  • DA and Others, R v Secretary of State for Work and Pensions [2018] EWCA Civ 504 207, 217

  • Entick v Carrington (1765) 19 St Tr 1030 199

  • Factortame (No. 2) [1990] UKHL 7 47

  • Farah v Commissioner of Police of the Metropolis [1998] QB 65 196

  • Gillan v United Kingdom (2010) 50 EHRR 1105 203

  • HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 229–30

  • Home Office v Commission for Racial Equality [1982] QB 385, [1981] 2 WLR 703 196–7

  • Huang v Secretary of State for the Home Department [2007] UKHL 11 150

  • Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 119

  • J v Secretary of State for the Home Department [2006] EWCA Civ 1238 229

  • Jackson v Attorney-General [2005] UKHL 56 48

  • Krasniqi v Secretary of State for the Home Department [2001] UKIAT 01TH02140 229

  • Liversidge v Anderson [1941] UKHL 1 160

  • M v Home Office [1994] 1 AC 377 68

  • Mandla (Sewa Singh) v Dowell Lee [1983] 2 AC 548 166

  • Nyazi v Rymans Ltd [1988] EAT/6/88 166

  • Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1 153, 154

  • R (AB) v Secretary of State for Justice [2021] UKSC 28 159

  • R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577 88

  • R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 235

  • R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3 49

  • R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 50, 53, 110, 112

  • R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41 50, 53, 66

  • R (Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] AC 1531 72, 77

  • R (SC and others) v Secretary of State for Work and Pensions and Others [2021] UKSC 26 154, 207

  • Re Allister and In the Matter of the Protocol NI [2021] NIQB 64; [2023] UKSC 5 51

  • R v Campbell (1990) 93 Cr App R 350 172

  • R v Entry Clearance Officer, ex parte Amin (1983) 2 AC 818 196

  • R v Gul [2013] UKSC 64 169

  • Roberts v Commissioner of Police for the Metropolis [2015] UKSC 79 200

  • Salvato v Secretary of State for Work and Pensions [2021] EWHC 102 (Admin) 214–15

  • SC and Others v Secretary of State for Work and Pensions and Others [2019] EWCA Civ 6 207

  • SC and Others v Secretary of State for Work and Pensions and Others [2018] EWHC 864 (Admin) 207

  • Secretary of State for the Home Department v Rehman (AP) [2001] UKHL 47 155, 170

  • Seide v Gillette Industries Ltd [1980] IRLR 427 166

  • SG and Others v Secretary of State for Work and Pensions [2015] UKSC 16 216, 217

  • Sheriff of Middlesex (1840) 11 Ad & E 273 36

  • Somerset v Stewart (1772) 20 St Tr 1 119

  • Southern Rhodesia, Re (1919) AC 211 (PC) 233 26

  • Thoburn v Sunderland City Council [2002] EWHC 195 47

  • Tutu and Others v Municipality of Kimberley, 1918–23 GWLD 64 28

Statutes

  • Act of Settlement 1701 49

  • Act of Union 1707 49, 99

  • Act of Union 1801 51

  • Agriculture Marketing Act 1958 153

  • Anti-terrorism, Crime and Security Act 2001 158

  • British Nationality Act 1948 188

  • British Nationality Act 1981 144, 155, 190

  • Colonial Laws Validity Act 1865 42

  • Commonwealth Immigrants Act 1962 189–90

  • Constitutional Reform Act 2005 49, 51, 123

  • Counter-Terrorism Act 2008 177

  • Counter-Terrorism and Security Act 2015 177

  • Crime and Courts Act 2013 123–24, 130

  • Criminal Justice and Public Order Act 1994 195, 200

  • Equal Franchise Act 1928 38

  • Equality Act 2006 201

  • Equality Act 2010 129–30

  • European Union (Withdrawal) Act 2018 83–4, 86

  • European Union (Withdrawal Agreement) Act 2020 112

  • European Communities Act 1972 45, 47, 48, 49, 50

  • Firearms Act 1968 195

  • Freedom of Information Act 2000 199

  • Government of Ireland Act 1920 41, 49

  • Government of Northern Ireland Act 1998 93

  • Government of Wales Act 1998 93

  • Human Rights Act 1998 49

  • Hunting Act 2004 48

  • Immigration Act 1971 190, 192, 194, 197

  • Immigration and Asylum Act 1999 197

  • Indian Criminal Procedure Code 1872 22

  • Interpretation Act 1978 55

  • Ireland Act 1949 44

  • Judicial Pensions and Retirement Act 1993 137, 138

  • Merchant Shipping Act 1988 48

  • Ministers of the Crown Act 1975 55

  • Misuse of Drugs Act 1971 195

  • Nationality and Borders Act 2022 228

  • Northern Ireland Act 1998 97, 113

  • Parliament Act 1911 38–9, 43

  • Parliament Act 1949 43–4, 48

  • Police and Criminal Evidence Act 1984 168, 194–5, 199, 202

  • Police and Magistrates’ Courts Act 1994 195

  • Public Health (Control of Disease) Act 1984 88

  • Race Relations (Amendment) Act 2000 186, 197, 198, 199, 203

  • Race Relations Act 1965 190, 191

  • Race Relations Act 1968 191, 192–3

  • Race Relations Act 1976 191, 193, 196–7

  • Representation of the People Act 1884 38

  • Representation of the People Act 1918 37

  • Scotland Act 1998 50, 98, 99, 103, 105, 113

  • Scotland Act 2012 99

  • Scotland Act 2016 99

  • Slave Trade Act 1807 27

  • Slavery Abolition Act 1833 27

  • Statutory Instruments Act 1946 76

  • Terrorism Act 2000 168, 169, 170, 203

  • Terrorism Act 2006 171, 172, 195

  • Terrorism Prevention and Investigation Measures Act 2011 168

  • UK Internal Market Act 2020 112–13

  • Vagrancy Act 1824 194

  • Wales Act 2017 102, 107

  • Welfare Reform Act 2012 206, 210, 212, 215

  • Welfare Reform and Work Act 2016 218

Statutory instruments

  • Adoption and Children (Coronavirus) (Amendment) Regulations 2020 88

  • Aviation Safety (Amendment etc) (EU Exit) Regulations 2019 84

  • Benefit Cap (Housing Benefit) Regulations 2012 215

  • Benefit Cap (Housing Benefit and Universal Credit) (Amendment)Regulations 2016 215

  • Child Tax Credit (Amendment) Regulations 2017 218

  • Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EUExit) Regulations 2019 85

  • Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 84

  • Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 85

  • Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 3) Regulations 2020 87

  • Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 4) Regulations 2020 87

  • Health Protection (Coronavirus, Restrictions) (No 2) (England) (Amendment) (No 5) Regulations 2020 88

  • Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No 2) Regulations 2019 85

  • Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 84

  • Nutrition (Amendment) (EU Exit) Regulations 2019 85

  • Plant Health (EU Exit) Regulations 83

  • Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 85

  • Product Safety and Metrology etc (Amendment etc) (EU Exit) Regulations 2019 84

  • Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 86

  • Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019 85

  • REACH etc (Amendment etc) (EU Exit) Regulations 2019 84, 85

  • Refugee or Person in Need of International Protection (Qualification) Regulations 2006 227, 228

  • Rights, Equality and Citizenship Programme (Revocation) (EU Exit)

  • Regulations 2019 86

  • Social Security (Restrictions on Amounts for Children and Qualifying Young Persons) Amendment Regulations 2017 218

  • Town and Country Planning (Napier Barracks) Special Development Order 2021 78

  • Universal Credit Regulations 2013 210, 212

  • Welfare and Work Act (Commencement No 3) Regulations 2016 215

Other jurisdictions

  • Act for the Governing of Negroes 1668 (Barbados) 27

  • Ilbert Bill 1883 (India) 21, 27

  • Indian Penal Code 1860 23

  • Queensland Criminal Code of 1899 23

  • St Lucia Criminal Code of 1889 23

  • Urban Affairs Act 1923 (South Africa) 28

Notes on Contributors

  • Alysia Blackham is Associate Professor at the Melbourne Law School, University of Melbourne.

  • Ben Bowling is Professor of Criminology and Criminal Justice at King’s College London.

  • Tufyal Choudhury is Associate Professor at Durham Law School and Senior Research Fellow at the Bingham Centre for the Rule of Law.

  • Donal K. Coffey is Assistant Professor/Lecturer at the National University of Ireland, Maynooth.

  • Ciara Fitzpatrick is Lecturer in Law at Ulster University.

  • Shruti Iyer is a DPhil candidate at the Centre for Socio-Legal Studies, University of Oxford.

  • Elizabeth O’Loughlin is Assistant Professor of Public Law and Human Rights at Durham Law School.

  • Alex Powell is Lecturer in Law at Oxford Brookes University.

  • Devyani Prabhat is Professor of Law at the University of Bristol Law School.

  • Paul F. Scott is Senior Lecturer in Law at University of Glasgow.

  • Kanika Sharma is Senior Lecturer in Law at the School of Law, SOAS University of London.

  • Alexandra Sinclair is Research Fellow at the Public Law Project and a Doctoral student at the London School of Economics.

  • Coree Brown Swan is Lecturer in Comparative Politics at Queen’s University Belfast.

  • Se-shauna Wheatle is Associate Professor in Law at Durham Law School.