3. Sources of the British Constitution PDF

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3. Sources of the British Constitution...

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07/10/2019 Sources of the British Constitution Recap from last lecture  UK is Parliamentary democracy  3 branches of government: executive, legislature, judiciary  UK does have a constitution o But that constitution is uncodified and not entrenched Sources of the British Constitution 1. Legislation – acts of parliament 2. Cases 3. Authoritative writings 4. Parliamentary rules 5. Conventions 1. Legislations (Acts of parliament)  Stems from the principle of parliamentary sovereignty  Parliament can make and unmake any law  Parliament is supreme and so any acts of parliament they make have a very important role  However, Parliament laws can easily be changed and amended, and so are they all equal o Is the HRA equivalent to a small law made my parliament?  Courts have recognized that this is not the case, but they have said that there is a constitutional hierarchy. This means that constitutional statues will be held more importantly that ordinary statutes because they hold constitutional importance What are constitutional statutes? Acts that effect the Parliament or judiciary function, or those that effect the relationship between the individual and state are constitutional A few statutes, which have special constitutional significance o Magna Carta (1215) o Petition of Right (1628) o Bill of Rights (1689) o Act of Settlement (1700) o Act of Union with Scotland (1707) In 2002 in the Metric Martyrs case, Lord Justice declared that certain acts, namely the parliament acts and HRA of 1998 were constitutional states.  This means they could not be replaced by a new law that contradicts them 2. Cases  Includes common law o Common law: rules and customs declared to be the law by the judges in decided cases before them (precedent) For example: Entick v Carrrington (1760s): Earl of Halifax dispatched messengers including Carrington to Entick’s. They broke in to E’s house and they seized papers and caused damage all because they thought that E had seditious papers; E sued C for trespass and C and others argued that they were lawful because of the lawful authority from Earl of Halifax. Warrant of secretary of State could not render the act lawful. Something that’s unlawful cannot be made lawful just because of authority.

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07/10/2019 Placed limits on what the Crown and/or people of the State can do; requiring lawful authority before you can interfere with personal property.

M v HO: M was deported and court ordered he should be retuned; home secretary did not comply saying that the court had no jurisdiction to do that. HO believed that they should not be held in contempt but the crown said yes. Crown cannot be held in contempt but those who are exercising the power can be The courts can choose to amend or override common law by introducing new acts of Parliament  Parliament has done this in the past; Burmah Oil (1954). This dealt with if Gov. had to provide compensation to property owners when they seized land that was damaged. It was decided that they would have do. Parliament created the War of damage act which overruled what the HOL decided and stated that no compensation would be required

3. Authoritative writings  Because UK constitution is uncodified legal writings play an important role  These can be used and relied upon to fill in gaps  These should be regarded as subordinate 4. Parliamentary rules  Includes regulation of debates, functions of the leaders of government and opposition  MPs and peers can change these rules  They form a part of the constitution because they have a regulation effect but they are not hard law Constitutional Conventions  Particularly importance source of the British constitution, because it’s not codified there’s no single document that you can turn to  Conventions are a critical and fundamental source of the constitution Jennings: Conventions ‘provide the flesh which clothes the dry bones of the law’ o They help with the flexibility of the constitution. It helps it be practical and flexible What we consider to be a constitutional convention is difficult: o Dicey: ‘the “conventions of the constitution” consist of maxims or practices which, though they regulate the ordinary conduct of the Crown, of ministers, and of other persons under the constitution, are not in strictness laws at all’  They obligate members of Gov. to do things, they are not actually laws o Jennings says in order to define a constitution we should ask three questions 1) Is there precedent for the practice 2) Is it accepted as binding 3) Is there good political reason for the existence of this convention? In a nutshell = constitutional practices that have become normatively obligatory in the sense that the actors involved consider themselves bound to comply (even if no legal method of enforcement) Examples: o Appointment of Prime Minister: convention in the UK that PM must be a member of the HOC (HOC are elected). This does not have a legal enforcement but it is well understood that they must be in the HOC and it is usually that the PM will be from the party with the most seats

07/10/2019 o Royal assent to Bills passed by Parliament: The Queen must approve all legislation, but there is a convention that says that the Queen will not stand in the way of legislation. Essentially the Queen shall only act as a symbolic function o Ministerial responsibility: Collective Ministerial responsibility states that the cabinet must present a united front (individual ministers cannot disagree, if they do disagree they must resign). Individual Ministerial responsibility states that the executive is accountable to the Parliament. Hence, they must account to parliament in providing an explanation for what has been done as well as suffer the consequences of their actions Significance:  Not legally enforceable in courts  However, they are politically relevant o They will be held accountable in terms of political importance. Hence, there is political accountability  Courts have recognized that they are part of the overarching judicial reasoning o Jonathan Cape case: Attorney General sought injunction from court to prevent cabinet information being released in a memoir. They did not grant the injunction but they did recognize an obligation for confidentiality UKSC majority in Miller (2017), para 146: ‘Judges … are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question … but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.'

Consequences for breach  Loss of office or departure from public life  Force of public opinion may compel offender of breach to acknowledge error  Offender may be given warning to not act similarly in the future  Passing of legislation to avoid a similar breach in future o E.g. Parliament Act 1911: Convention was in place that said HOL would not interfere with money bills. Despite that they did stand in the way and so Parliament introduced the act that removed the power of the HOL to stand in the way of a Bill. They now can only delay a bill from going through but they cannot interfere with a bill In recent years there has been a push for codification. But does legislating make a difference re: enforceability?  Not according to the UKSC (Miller, para 148): ‘By such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement.’...