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THE CONSTITUTIONIn the UK there is no single document containing the constitution – the same is also true for New Zealand and Israel. But this is unlike most other modern democracies.Narrow Definition of Constitution as per the dictionary: Concessions on the part of the sovereign power, normally in ...

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THE CONSTITUTION In the UK there is no single document containing the constitution – the same is also true for New Zealand and Israel. But this is unlike most other modern democracies. Narrow Definition of Constitution as per the dictionary: Concessions on the part of the sovereign power, normally in a document that are assumed to be more fundamental than any other law and contains principles for the state governance. Broad Definition of Constitution as per Bolingbroke: The assemblage of laws, institutions and customs derived from certain fixed principles of reason that compose the general system according to which the community has agreed to be governed. “… the British Constitution has not been made but has been grown” Jennings The UK does have a constitution despite the fact it does not have a single document entitled ‘The Constitution’. Its origins date back to the 12th Century and it has evolved incrementally. Therefore, it is sometimes called a political constitution rather than a legal constitution. The Human Rights Act 1998 were a major change – they are a fundamental set of rights which the courts can enforce upon Parliament by issuing a declaration of incompatibility against a particular act. Doctrines Central to the UK Constitution:  Parliamentary Sovereignty  Rule of Law – the law applies to everyone; no one is above the law The UK Constitution:  Sets out the basic rules, institutions and practices by which the country is governed  Unusual as it is a devolved state and has certain federal elements  Is generally understood and accepted by all members of society  Has evolved over many centuries  The constitution therefore enjoys high levels of legitimacy among the constitution (comparatively to more ‘artificial’ constitutions) The UK constitution is also sometimes referred to as ‘unwritten’ however, it is largely written down, just not in a single document. There are many sources of constitutional law. Sources of Constitutional Law: 1. LEGISLATION – the most important Thoburn v Sunderland: Some statutes are deemed to be constitutional and therefore cannot be impliedly repealed. These include; the Petition of Right 1628, Bill of Rights 1689, Act of Union 1707, Parliament Act 1911, European Communities Act 1972, Scotland Act 1998 and Human Rights Act 1998. HS2 Case: We have constitutional instruments. 2. CASE LAW

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Entick v Carrington: Prerogative Powers are subordinate to the Common Law Ex Parte Witham: There is a constitutional right of access to the courts. Ex Parte Pierson: Where a prisoner is serving a life sentence, the Home Secretary cannot then increase the length of a life sentence. Ex Parte Anufrijeva: Notice of a decision must be intimated before it has legal effect so those concerned have time to challenge the decision in the courts if they wish too. ROYAL PREROGATIVES – these are a historical source of law that are recognised by the courts. Examples include; appointment of the Prime Minister, Dissolution of Parliament and Royal Assent to Bills. There has been some transfer of prerogative powers to a statutory footing, for example; the Sewel Convention. BBC v Johns: A prerogative power can be reduced or abolished but no new prerogatives can be created. (New powers can be created for the Crown but only on a statutory footing). Miller v Secretary of State for Exiting the EU: Treaty making and withdrawal is a prerogative power. However, the accession to the EU has conferred some rights to the EU. Therefore, withdrawal has an impact on individual rights and existing individual rights cannot be interfered with through the exercise of prerogative powers – only via Parliamentary legislation. CONSTITUTIONAL CONVENTIONS Rules of constitutional behaviour that are not legally enforceable but have political sanctions. They aid practices and give effect to formal provisions; this is especially important in the UK’s unwritten constitution. EUROPEAN LAW – two separate and distinct sources. a. EU Law – enacted via the European Communities Act 1972. This is effectively a competing source of sovereignty to the UK Parliament. Van Gend en Loos: Individuals can rely on EU Law as it constitutes a new legal order which confers rights on EU nationals. b. ECHR Law – enacted via the Human Rights Act 1998. It creates substantive rights through a court process. PARLIAMENTARY CUSTOMS The relationship between the Crown and Parliament as have historically evolved. This includes practices, status and procedures. LEGAL WRITINGS Writers such as Stair and Erskine have been declared formal sources of law. Other legal writers such as Dicey and Blackstone can guide legal proceedings. INTERNATIONAL LAW Treaty obligations do not alter the domestic law of the UK – they are binding internationally only. This is due to the UK’s dualist system of law meaning that there is a distinction between international and domestic law and that to become domestic law, international law must be nationally implemented. (The exception to this is EU and ECHR Law) Salomon v Customs and Excise Commissioners: There is a prima facie assumption that Parliament does not intend to act in breach of international law.

CONSTITUTIONAL CONVENTIONS “Customs, practices, maxims, or precepts which are not enforced or recognised by the courts, make up a body not of laws, but of constitutional or political ethics” Dicey Constitutional Conventions are considered binding like law. However, they are politically enforced rather than legally. Therefore, there is some difficultly in knowing the consequences for breach. Fear of political consequences rather than legal sanctions keep them alive. Examples of Constitutional Conventions:  Royal Assent to Bills: The Monarch will not withhold assent to Bills where they have been properly passed  Appointment of Prime Minister: The Monarch will appoint the leader of the party who commands a majority in the House of Commons  Ministerial Responsibility: This includes both Individual and Collective Responsibility. If there is a breach, then the Minister will be expected to resign. The Creation of Conventions: Reference Re Amendment of the Constitution of Canada: The Jennings Test 1. What is the rule? 2. Did the actors believe they were bound by the rule? 3. Is there a reason for the rule? Difficulties in Conventions There is a lack of clarity around non-normal situations that are usually dictated by Constitutional Conventions. E.g. The Formation of a Coalition Government in 2010 These show that political events could trump and even start new conventions. It also highlights the fact that legislation could be more effective in clarifying such matters. Advantages of Legislating on Constitutional Conventions  Strengthen the obligation of the rule and create legal consequences for breach  Greater certainty and clarity  Ability for judicial interpretation  More accountability

Disadvantages of Legislating on Constitutional Conventions  Flexibility would be lost  Not always appropriate to have ‘hard laws’  Fear of judicialisation of politics  The courts may not always enforce a convention that has been put into statute E.g. The Sewel Convention

A LAW ALWAYS TAKES PRIORITY OVER A CONSTITUTIONAL CONVENTION Madzimbamuto v Lardner-Burke: A constitutional convention can have no legal effect to limit the legislative supremacy of Parliament.

Attorney General v Johnathon Cape: Constitutional Conventions are taken into account by courts. Reference Re Amendment of the Constitution of Canada: Courts can’t create or diminish Conventions Reference Re Secession of Quebec: Courts will not enforce Constitutional Conventions – they have political sanctions only. The Sewel Convention: The UK Parliament will not legislate on areas of devolved competence without consulting the Scottish Parliament first.  This was put in a Memorandum of Understanding in 2013  This was added as Sec 28(8) of the Scotland Act in the 2016 Scotland Act However, it is still not legally enforced. This means that the UK Supreme Court has recognised a category of Convention that is legally expressed in Statute but the court feels is better left for political rather than judicial enforcement. This is ridiculous as it creates almost a new type of law that has little foundation. It negates the intentions of Parliament and the judiciary shy away from getting involved in political affairs.

THE UK STATE From around the 19th Century the UK was considered to be the archetypal Unitary State due to the doctrine of parliamentary sovereignty which centralises ultimate power and authority in the Westminster Parliament. The theoretical opposite of the Unitary State is the Federal State and is where power and authority is divided or shared between multiple levels of government. Typically, each government is sovereign within its own sphere of competence meaning that the central government cannot interfere in the regions. The UK does not truly fit either of these definitions any more. In more recent decades there has been wide acceptance of the UK as a Union State – proposed by Rokkan and Unwin and developed by Tierney. The Union state focuses on the way in which some states are created and the constitutional implications this has for the nature of the state that is created. Union States are usually created when two or more pre-existing states come together to form a new state and the terms and circumstances of the union impact on the new state’s character.  Union of Crowns 1603 – Scotland and England remained two separate states  Union of Parliaments 1707 – created the new state of the UK by abolishing the abolishing the Scottish Parliament and changing the English Parliament to create a new Westminster Parliament which included Scottish MPs and Peers. The Union also preserved some important pre-existing institutions within Scotland such as the Kirk and Scots private law. Sec 37 of Scotland Act 1998: The Union Act is given effect but this is subject to the Scotland Act 1998. MacCormick v Lord Advocate: Parliamentary sovereignty is an English principle with no counterpart in Scots Law. The judge saw difficulty in seeing why the new Westminster Parliament must inherit all characteristics of the English Parliament, however, it was left open for future decisions and no definitive answer was given. Gibson v Lord Advocate: The Act of Union contains fundamental provisions relating to the preservation of certain aspects of Scots Law and institutions which must be respected. Lord Gray’s Motion: The proposed House of Lords bill which would have removed the right of Scottish hereditary Lords to be a member was not a breach of the Treaty of Union as such Lords were present to represent the UK and not Scotland. Since the 20th Century Scottish nationalism has evolved and this has led to an increasing amount of devolution leading up to the creation of the Scottish Parliament.  1885: Scottish Office under a Secretary of State for Scotland was created which aimed to improve administrative capacity.  1926: Scottish Office was elevated to a Cabinet Department

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1931: Scottish Office moved from London to Edinburgh 1950s: Further transfer of powers to the Scottish Office 1969: Kilbrandon Commission examined the Constitution and consider if any changes were desirable as a response to the shock election win by the SNP 1973: Kilbrandon Report published recommending an elected Scottish Parliament with legislative powers and differing models of devolution for Scotland and Wales (fully fledged federalism was rejected) 1978: Scotland Act 1978 made provision for an elected assembly with legislative powers, an executive headed by a First Secretary and a devolved powers model of devolution (this is in contrast with the reserved powers model we have today) 1979: Referendum on devolution for Scotland. Required a double majority (a majority of those coting and plus 40% of those entitled to vote) which it failed to achieve. 1989: Formation of the Scottish Constitutional Convention, a political and civil society that aimed to campaign for a Scottish Parliament 1997: Election of a new Labour Government and the Queen’s speech proposed legislation to establish a Scottish Parliament 1997: Publication of a White Paper regarding a Scottish Parliament 1997: Scottish Referendum regarding a Scottish Parliament – 74.3% voted in favour 1997: Publication of a Scotland Bill 1998: Scotland Bill receives Royal Assent and the Scotland Act 1998 is bought into force in stages with the Scottish Parliament meeting for the first time in 1999

Scotland Act 1998: This was a result of the commitments to extensive devolution of power in the manifesto of the new Labour government elected in a landslide win in 1997. The Scotland Act 2012 and the Scotland Act 2016 have both extended devolutions in Scotland. The 2016 Act came in the wake of the Scottish Independence Referendum 2014 and the Vow pledged by the three UK party leaders to ensure more devolution if a ‘no’ vote was returned in the referendum. Is Devolution a threat to UK Parliamentary Sovereignty? NO THREAT TO PARLIAMENTARY SOVREIGNITY: The UK Parliament is sovereign in all matters. Sec 28(7) Scotland Act 1998: This section ensures that the power of the UK Parliament to make laws for Scotland is not affected. Sec 28(8) Scotland Act 1998: Puts the Sewel Convention on a legislative footing (was introduced by the Scotland Act 2016) Miller v Secretary of State for Exiting the EU: The Sewel Convention is still not judicially enforced. PARLIAMENTARY SOVREIGNITY IS BEING UNDERMINED BY DEVOLUTION: Scottish people agree to the exercise of specified powers by Westminster but retain their sovereignty over all other matters and that any reduction or abolition of devolution must be carried out via a referendum. Thoburn v Sunderland: Some statutes are deemed to be constitutional and therefore cannot be impliedly repealed. These include; the Petition of Right 1628, Bill of Rights 1689, Act of

Union 1707, Parliament Act 1911, European Communities Act 1972, Scotland Act 1998 and Human Rights Act 1998. Jackson v Attorney General: Parliamentary sovereignty is no longer, if it ever was, absolute. The rule of law always trumps parliamentary sovereignty. However, both of these cases came at a period of judicial expansion and constitutional adjudication and the courts are notably more restrained now as in: AXA v Lord Advocate: Scottish law is open to judicial review in special circumstances. The Scotland Act 2016 altered the legal footing of the Scottish Parliament by amending the Scotland Act 1998. “There shall be a Scottish Parliament”  “A Scottish parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangement” This replacement created stronger protection as it recognised their permanence. Other changes also included the fact that the Scottish Parliament could only be abolished via a successful referendum.

THE RELATIONSHIP BETWEEN WESTMINSTER AND HOLYROOD The relationship between Westminster and Holyrood was established by the Scotland Act 1998.  There is no legal entrenchment for the Scottish Parliament bar the element of permanence added by the Scotland Act 2016 as there has to be a referendum to abolish it  Signs of political entrenchment due to the long history in developing a Scottish Parliament Comparing Westminster and Holyrood  Both are legislatures with a government in parliament system  Both have Ministers drawn from the membership of the legislature who are responsible to the Parliament  Similar parliamentary privileges, bar the fact in Holyrood there is no freedom from arrest  Both are now fixed term parliaments since the Fixed Term Parliament Act 2011  The Westminster Parliament has evolved from ancient times and is the product of experience and evolution whereas the Holyrood Parliament has been deliberately designed with modern principles of democratic governance in mind  Different physical architecture  The chamber in Holyrood is a ‘horseshoe’ design whereas Westminster has a ‘bear-pit’ design. This is because in Westminster there is first past the post elections and therefore confrontational debate between the government and the opposition. Whereas in Holyrood there was a deliberate departure from this due to the additional vote electoral system and therefore the culture of consensual and inclusive politics  Westminster is bicameral but Holyrood is unicameral as it represents a smaller population and it helps to reduce costs. The fact that it is unicameral means that other ways of ensuring scrutiny, revision and braking functions are necessary – this is done by committees and greater public participation  The Monarch is part of the legislative process through the requirement of Royal Assent to Bills in both parliaments but the Monarch is a constitutive element of the UK Parliament but this is not so in Holyrood  Differing rules in the committee system, rules of procedure, working practices and public accession and participation SESSION: Two different definitions Westminster: A term is the period between one election and the next and each term is divided into annual sessions each usually beginning in November with the state opening of Parliament Holyrood: A session is the whole term of Parliament, usually 4 years Meeting and Dissolution in Westminster BEFORE 2011… Parliament was summoned and prorogued by the Monarch. The life of Parliament was variable but the maximum length was 5 years under the Parliament Act 1911. This could be overridden by another Act of Parliament to extend the life of Parliament as happened during WWII.

Dissolution of Parliament was by the Monarch, on the advice of the Prime Minister as dictated by a Constitutional Convention. It was in effect at the sole discretion of the Prime Minister. Fixed Term Parliament Act 2011  This was a result of the Lib-Dem/Tory coalition  The Lib-Dems wanted to increase coalition stability and limit the power of the Prime Minister Sec 1(2) and (3): The term for the House of Commons was set at 5 years by fixing the fate for the general election for the first Thursday in May of each fifth calendar year commencing on the 7th of May 2015. Sec 1(5): The Prime Minister has power to delay the determined date by up to 2 months so long as reasons are provided and it is approved by both Houses. There are 2 exceptions to the rules laid out in Sec 1… 1. Sec 2(1) and (2): Where the House of Commons passes a motion by a two-thirds majority vote of all seats for an early general election This was what happened in the 2017 snap general election by Theresa May 2. Sec 2(3)(4) and (5): Where the House of Commons passes a vote of no confidence in the government and within 14 days does not pass a vote of confidence in the government In either of these situations, the polling day is appointed by the Monarch on the advice of the Prime Minister Sec 2(7) If the appointed date falls before the first Thursday in May, then the Parliament elected only has a term of 4 years Sec 1(4) Before a general election, the Parliament dissolves by operation of law (and not proclamation of the Monarch) 25 working days before the polling day Sec 3(1). It is expressly stated that there is no residual prerogative left in this area under Sec 3(2). Previously, the freedom to choose the date of the next general election was seen as a very significant power for the incumbent prime minister and that usually worked to the benefit of the party in power. The Fixed Term Parliament Act 2011 was welcomed for many reasons:  Reduced the power of the increasing presidential powers of the Prime Minister  Reduced the political advantage pf the ruling party in timing elections  Alleviates executive dominance in the House of Commons  Strengthened the position of backbenchers as they could no longer be threatened with dissolution  Modernisation in codifying important practices  Clarified rules of government formation and duration The Fixed Term Parliament Act 2011 in Practice….  The first schedules election under the Act was held on the 5th of May 2015

 Theresa May activates Sec 2(1) for an ear...