Constitutional and Administrative Law Revision Booklet PDF

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C&A – Constitutionalism – Revision Booklet How Law is classified Public: Regulates public rights and obligations, guaranteed by a constitutional framework, interests of community (constitutional, administrative, criminal)Private: Regulates rights and obligations of private parties – ofte...

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C&A – Constitutionalism – Revision Booklet How Law is classified Public: Private: Regulates public rights and obligations, Regulates rights and obligations of private parties – often as created by the parties guaranteed by a constitutional framework, themselves, in the interest of individuals interests of community (constitutional, (contract, family, land) administrative, criminal) Civil Criminal Common Statute Substantive Procedural Domestic: International: Organisation of law within the state, concerns Regulates relationships between various states, internal affairs of the state and includes public usually agreed by treaty and includes public and and private law private law The Definition of ‘Constitution’  “A constitution is a set of rules… however, a constitution is not, and does not purport to be, a full and accurate description of the power relations currently prevailing in any given society.” Anthony King, Hamlyn Lecture 2001  Thin definition: o Law that establishes and regulates the main organs/ institutions of government, their organisations and powers.  Thick definition: o Defines main organisations of govt. and their powers o Provides a framework of rules o Found in one document/ small number of written documents o Operates as a superior form of law o Provisions are entrenched o Provisions are justiciable o Provisions express a common ideology  “Mirror reflecting national soul.” Per AJ Mahomed, 1991  “The Constitution is a living force. It is a growing thing.” President Truman, 1952  Most countries have a single, codified text eg. American Constitution. The UK, New Zealand and Israel do not have a comprehensive text. What should a constitution contain?  G. Marshall: “a combination of legal and non-legal rules”  A system providing institutions of the state. The system should define the relationship between institutions and the power of judiciary  The system should define, protect and encourage a culture in which people’s basic rights are respected in order to uphold human dignity. Constitutions above and below the state Sub-national constitutions:  USA has a constitution for the whole country but also for each individual states too.  UK has devolved powers to new legislative and executive institutions in three smaller parts of the country: Scotland, Wales and NI. The UK is neither a federation nor a unitary state. Membership of the European Union:  National governments have pooled executive, legislative and judicial powers in a number of areas eg. Custom union, competition rules, fisheries and agricultural policy and environmental protection.

A set of institutions – the Commission, the Council, European Parliament – have powers to legislate in these areas and do so under the framework of two international treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union.  The Court of Justice of the EU has power to interpret and enforce the treaties.  A basic principle is that the EU law has supremacy over national law of MS. European Convention on Human Rights  Separate from the EU, the UK has been a signatory to the ECHR since 1952. This is an international treaty, made by the Council of Europe, which declares a set of basic rights and freedom closely modelled on the Universal Declaration of Human Rights.  The ECtHR, based in Strasbourg, hears applications from individuals in the 47 signatory states. Only a small proportion get a hearing. Strasbourg case law has prompted changes in UK legislation and govt. practise. o Malone v United Kingdom: telephone tapping case, resulting in the enactment of the Interception of Communications Act 1985, which provided proper legal framework for bugging. o Hirst v United Kingdom (No2): controversial case, UK held to be in breach of the ECHR for English Law to apply a ban on any prisoner voting in elections. UK law still remains unamended.  Up until 1998, from a constitutional viewpoint, was just an international treaty and not part of domestic law. This meant a claimant in UK courts could not rely directly on the text of the ECHR, they would have to go to Strasbourg. The 1998 Human Rights Act copies out most of the Convention into domestic law. If a UK Law is in breach of ECHR and they cannot interpret the law so it complies, they can issue a ‘declaration of incompatibility’. This has no legal effect but signals to govt. and parliament. 

Codified v non-codified Arguments in favour of a codified constitution  Systematically sets out basic rules  Usually approved by the people in a referendum  Status as the highest form of law in the country – symbolic supremacy often emphasised; entrenched  Limits the power of the legislature – have to work within the framework of constitution.  An unwritten constitution has no national law higher than an AoP – Parliamentary Sovereignty.  An unwritten constitution has no formal or special process for amending the constitutional system.  Accessible and easy to understand.  Controversies may arise over who has the power to make, amend, interpret rules in an unwritten constitution due to lack of formal process eg. parliamentary sovereignty argument.  Enable everyone to know what the rules and institutions are that govern.  “The sprawling mass of common law, AoP and treaty obligations is impenetrable to most people.” HoC Political and Constitutional Reform, A New Magna Carta?  The present unwritten constitution is an anachronism and unsuited to modern day society.  It would become a symbol and expression of national identity today and a source of national pride. Arguments against a codified constitution  Average lifespan of a constitution is 17 years, does not develop naturally and flexibly – must be amended

May still not be a complete account of how the constitutional system actually works – the text may not reflect how the constitutional system works in reality. Some significant constitutional rules may be set out in case law and ordinary legislature too.  May be hard to amend; stringent amendment process in some countries eg. Australia  A. King: “constitutions are never – to repeat – never written down.” They may be written down in principle, but never in reality.  An unwritten constitution has extreme flexibility eg. Devolution, greater powers to Scotland and Wales.  “UnBritish” – A New Magna Carta?  The fact the UK has never been reduced to a single document indicates success of the system of Parliament and the stability it has brought our country – A New Magna Carta?  A written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of govt. legislation.  Unnecessarily and not popularly supported idea  Barber, Against a Written Constitution o The court should strive not to distort the political processes of the constitution (focus on legislative laws) o To a considerable extent it is already codified, and many of the conventions that regulate the relationship between ministers and Parliament can be found in the Ministerial Code. It is hard, though, to see how a court could enforce these conventions. How could a court decide when a minister had failed to give a satisfactory answer to a parliamentary question, or when her conduct in office was so poor that she should resign or be demoted? o in certain circumstances a lack of clarity and the presence of uncertainty can be a benefit.9 This is particularly true in parts of constitutional law and practice where uncertainty may mask, and allow us to avoid, a costly and unnecessary political choice. There are several examples of such useful vagueness in the British constitution. Perhaps one of the longest standing concerns the jurisdiction to determine the scope of parliamentary privilege, an entitlement which has been asserted by both courts and the Commons. Both have been able to maintain their incompatible claims by studiously avoiding forcing a resolution of the question  It might be argued that clarity in this area would be a good thing: people are entitled to know where constitutional power lies within the system. process of producing a written constitution could provide an opportunity for us to debate these issues, and resolve the allocation of power in the system. Further, it might be desirable to address these questions without the looming presence of a particular crisis to cloud our judgement Different Options Proposed by Second Report 2014-15, A New Magna Carta  Constitutional Code – document sanctioned by parliament but without statutory authority, setting out the essential existing elements and principles of the constitution and workings of govt.  Constitutional Consolidation Act – a consolidation of existing laws of constitutional nature in statute, the common law and parliamentary practise, together with a codification of essential constitutional conventions. 

Written Constitution – a document of basic law by which the UK is governed, including the relationship between the state and its citizens, an amendment procedure and elements of reform. Walker, Our Constitutional Unsettlement, 2014  The persistence of the doctrine that Parliament can make or unmake any law and that no other entity can override or set aside parliamentary legislation. The sovereignty of Parliament is, first, a clear expression and vehicle of an evolutionary constitutional logic.  Parliament is competent at any time.  Parliamentary sovereignty, thirdly, provides reinforcement for the evolutionary constitution. It does so in two senses, symbolic and instrumental. o Symbolically, parliamentary sovereignty long supplied an object of continued affirmation and embedded identification within our political culture. It helped to dignify the very notion of evolution - of constitutional gradualism. o Instrumentally, not only was parliamentary sovereignty a vehicle of gradual adaptation of the content of the constitution, but it was itself also a gradually adapted and adaptable vehicle. Through procedures and conventions that adjusted the composition of Parliament and the manner and form of its law-making from time to time, the doctrine of parliamentary sovereignty proved pliable enough to allow continuity and adaptation  Parliamentary sovereignty is first and foremost a principle of legal authorisation. It lacks the dexterity for the detailed division and intricate layering of authority one finds in the terms of a canonical constitutional text, but nonetheless it is just as final and comprehensive in scope as such a textual authorisation  Parliamentary sovereignty, also, if more generally and less determinatively, necessarily implies the centrality of Parliament to the institutional architecture of the state  David Marquand with his rather more colourful description of the constitution as a “Palimpsest of sometimes discordant myths, understandings and expectations, reflecting the changing values of succeeding generations”  In both (legal and political) approaches, reform in the evolutionary constitution is never holistic, but gradual, piecemeal and typically unsystematic, either by dint of a lack of interest in the constitution.  Legal supremacy today? o ever more juridically assertive and jurisdictionally encroaching European Union o from entrenchment, albeit in weak form, of the Human Rights Act32 as the domestic interface of another key transnational regime – the Council of Europe’s Convention on Human Rights o from the legally and politically diverse array of autonomy claims from supporters of self-government in Ireland and, progressively, in Scotland, 34 and, if in a somewhat lesser key, Wales. o It comes from serial efforts,36 of diminishing effectiveness,37 to reduce and abolish the aristocratic component of the House of Lords. o It comes from other attempts, more or less successful, to rebalance and redistribute power at the centre of the Parliamentary state, through freedom of information,38 closer control over Parliamentary standards 39 and electoral reform. 

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Ever-growing critique of PS: key cases of recent years where the meaning and extent of the basic doctrine has been at issue, from Factortame 43 to Thoburn, 44 from Jackson45 to Axa46 and now to the HS2 case. 47 While these challenges have met with only modest success, the tools of critique have been sharpened The settled constitution was something whose virtue was not only unwritten, but often unseen and unspoken, and simply taken for granted. Any embedment of law causes disturbances eg. ECHR. Future of constitution: episodic approach would struggle to explain the extent to which the reform agenda has continued, and in significant respects even accelerated, after the New Labour years. Alongside renewed attempts at the reform of the House of Lords and the electoral system, we have witnessed serious contemplation of reform of domestic human rights commitments made under the 1998 Act The idea of a constitutional unsettlement emerges from a sense that each of the alternatives for the British constitution - the settled constitution, the temporarily unsettled constitution, and the new Constitutional settlement, are either unavailable or increasingly remote in prospect. A constitutional unsettlement, then, is a combination of certain deep-lying, historically informed structural features of the constitution which contribute to and flow from the closing off of these other options as viable alternatives, together with the mindset this structural background tends to encourage. Positive of current position: o It is also a process that forces and keeps differences out in the open. There is no camouflaging of the vital choices to be made, no mediation through judicial institutions whose authority over such palpably political questions may be increasingly subject to question. o certain virtue in the retention of constitutional fluidity. o Constitutional unsettlement, if looked squarely in the face, may turn out to be a ‘least worst’ solution for a world in which constitutional sovereignty, both as an organizing device and as a measure of belonging, is not what it used to be

Why does the UK not have a codified constitution?  There has never been a stimulated birth eg. Independence eg. Norway and Sweden, after a global war eg. Germany and Japan. The UK has been politically stable since the idea of a systematically codified constitution came into being.  The Enlightenment was an intellectual movement in the 18 th century based on the ideals of liberty, tolerance and reason eg. Thomas Paine, a crucial thinker during this period.  Instead of a process of constitution-making like in France and America, there were a series of reforms to create a representative democracy eg. Representation of the People Act 1832 (the Great Reform Act), the Second Reform Act.  Cabinet Manual: “constitutional order has evolved over time.”  Nick Clegg advocates a written Constitution now that Westminster has been divided in order to set a ‘clear statement of the values we all share’. Main Characteristics of the UK Constitution  Uncodified  Evolved  Union state  Flexible  Dominant executive

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Devolved Parliamentary sovereignty

Significant constitutional rules are written down eg. in AoP and judgements of the UK Courts. Constitutionally important rules are also in the form of ‘constitutional conventions’, which are non-legal rules that cannot be enforced by the courts. These are mostly written down in official documents eg. The Cabinet Manual.  “Unwritten” is misleading. Although not in one single document, almost all rules are written somewhere and are reasonably clear and well understood. Constitutional Plurism  The Treaty of Westphalia 1648 “marked the formal recognition of states as sovereign and independent political units.” CS Rhyne  Modern Development of constitution: o External pressures: globalisation, technological advance, integration, EU o Internal pressures: ethnic importance/ identity, transfer of powers locally, devolution  Plurality of constitutional sites of authority still have a dominant position of the state. States today remain the principal institutional site. Sources of Constitutional Rules Www.legislation.gov.uk Acts of Parliament Made by members of The process - drafted the HoC (elected) and by the govt. lawyers; HoL (unelected) scrutinised by politicians during the legislative process Law reports The Common Law Made by judges of the Conclusions on higher courts questions of law reached by judges after an adjudicatory process where the court hears submissions from legal representatives Constitutional Made by different Precedents for No official list of all Conventions types of constitutional practise, which is conventions. One actors eg. politicians considered binding, example is Cabinet and the Queen and a good reason for Manual. practise International Treaties Made by diplomats UK govt. negotiates Treaties.fco.gov.uk ratified by the UK (politically neutral with governments of officials) working on other countries behalf of the government  

Recognising ‘Constitutional Statutes’  In 2003, the Joint Committee on the Draft Civil Contingencies Bill drew up a list of statutes that could be considered ‘fundamental to the constitutional law’: o Magna Carta 1297: proclamation of liberties eg. no punishment except by lawful judgement o Parliament Acts 1911-49- ensures primacy of HoC over the HoL by enabling Commons to present a Bill for RA even if the Lords disagree. o European Communities Act 1972 – membership into the EU

Human Rights Act 1998 – Brings home the provisions from ECHR The Scotland Act 1998 – devolution framework for Scotland  Amended by Scotland Act 2016  Thoburn v Sunderland City Council: o The courts have attempted to define constitutional AoPs. o The legal issue was the relationship between the ECA 1972, which incorporates EU law into the UK’s legal system and legislation requiring sellers to move to metric measurements. o Laws LJ developed the idea that there was a distinction between AoP containing ordinary rules and those containing ‘ordinary’ and ‘constitutional’ rules. o The significance of classifying the ECA 1972 as constitutional has led to the approach of ‘implied repeal’.  Acts don’t come labelled as constitutional – there is must disagreement about which laws are constitutional. Constitutional Rules in the Common Law  R v LC, ep Witham, decision about the lawfulness of a decision to raise court fees: “The executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.” Constitutionalism and Legitimacy  A rule may be legal but it may not be legitimate. Legitimacy amounts to a belief on the part of the people that they should comply with a certain rule. This belief corresponds to a claim by State institutions that people should comply with rules they have created.  Exercise of government power and the creation of law in the UK is legitimised through: o Parliament elected in the general election. o Judicial oversight and the respect for rights  “I take my obligation to uphold the rule of law seriously. Equally, it remains the case that Parliament is sovereign.” Chris Grayling Political Constitutionalism  Exercise of govt. power and the creation of law is legitimised through the Parliament being elected in the general election: o Majoritarianism – the views of the majority should be decisive, as soon by the composition of the HoC. o People elect MoP o Parliament holds ministers accountable o The role of courts should be fairly limited because judges lack democratic accountability.  Expresses the principle of parliamentary sovereignty, meaning the courts have no constitutional power to set aside provisions of AoP as incompatible with constitutional principles.  Advocates see no value in a codified constitution  The political process protects us from politicians behaving unconstitutionally: o Politicians sense of morality will stop them acting unconstitutionally o Parliamentary committees will examine and evaluate the work of the executive o Parliament will not support government policy which is unconstit...