Public LAW Revision - Notes out of GDL book PDF

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PUBLIC LAW REVISION

Introduction to the constitution: - “examine whether there should be a codified constitution”

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Political and legal rules which concern the government of the country. A constitution in the narrow sense is a document or documents drafted tor form the fundamental law of a country. A constitution can be written/unwritten, flexible/rigid, monarchical/republican, federal/unitary or based on the separation of powers.

The British constitution is unwritten, flexible, monarchical, unitary, subordinate the legislature and on a limited separation of powers. *essay questions on constitutional law are common*

What is constitutional law? Puts country and government together on a legal basis and contains rules which regulate it. Thomas Paine ( The Rights of a Man 1791) defines a constitution which creates the government, defines its powers and grants it the right to exercise them. A constitution is a set of rules that defines and limits state power, outlines the framework of the laws and guarantees rights and freedom of the people. There are wide and narrow definitions:  Wide = constitutional law is a set of rules concerning the setup of government.  Narrow – constitutional law is a document or set of documents drafted to be the fundamental or basic law which establishes a country and sets up government. (if a have time look further into wide/narrow constitution) – research is needed for an exam question on the constitution.

Written/unwritten Written/narrow constitution – in the narrow sense a constitution is written. Marbury v Madison (US Supreme Court) 1803 – those who draft written constitutions intend them to be fundamental law of the state and have special legal status. Implies that all laws must be compatible with the constitution and organs of gov are subject to it when carrying out functions. Unwritten/wide – most legal commentators stress the point that this constitution has no special legal status. UK Supreme Court in R (on the application of Miller) v Secretary of State for Exiting the EU 2017 explained that the UK does not have a constitution unlike most other countries in the sense of a single document which prevails over other sources. The UK’s has developed over time through a combination of statutes, events, conventions, academic writing and judicial decisions . McCawley v The King 1920 – constitution is largely based on historic development with no legal status.

The distinction between written and unwritten is not if it is contained in documents, it focus on the type of legal document and its status. – Colin Munro Studies in Constitutional Law 1999 Why do countries have constitutions? Assumed necessary to ensure that laws are made in a way which serves the relationship between citizen and state positively. make sure administrative functions of the government are carried out properly within legal limits by those empowered to do so. Sets out structure of the courts.

Flexible and Rigid McCawley v The King 1920 Lord Birkenhead - constitutions of some countries contain clauses requiring special procedure and special legislative assemble to amend them while in the UK there is no special procedure for making amending/amending/repealing constitutional law.  Rigid – requires special procedure to make and amend- constitutional laws have higher status.  Flexible – no special procedure – parliament can amend law by passing a bills through parliament as long as there is a majority. Parliament act 1911 and 1949 changed UK constitution limiting power of the Lords – both acts passes in ordinary parliament procedure.

Federal and Unitary  Federal – government powers divided between a central government - each state, region or province has its own government. An important feature of a federal constitution is that the member state retains sovereignty. Every power not expressly delegated to a feral government is retained by the state.  Unitary state – all government powers originate from central/national government. The central gov can transfer powers to regional or local authorities but remain subordinate to government and they can override. This means UK Parliament and the departments of state headed by PM run the country. Some law-making powers have been transferred to Scotland, Northern Ireland and National Assembly for Wales. Powers have also been granted to local authorities under Localism Act 2011.

Republican and Monarchical constitutions  Republic – elected president as head of state who may not exercise executive functions within the process of government ( Germany) includes protection of people and safeguarding basic law. Political Power is exercised by German Chancellor and other members of federal government.  Monarchy – king or queen as head of state who is appointed according to hereditary principle. UK is Monarchial.

Constitutions in which the legislature or constitution is Supreme  Some federal states which have written and rigid constitution require legislature to make laws compatible with constitution which may also stipulate the procedure to be followed . Marbury v Madison 1803 (US case) – act of legislature must act in a way consistent with the constitution.  UK based on sovereignty of Parliament

Separation of Powers  System of Government divide into three organs – legislative, executive and judicial.  They are designed to check and balance each other and exercise their functions independently.  It is practically impossible to find a system of complete separation of powers  The separation of powers promotes government which serves people as a whole and not the political and economic interests.

Characteristics of the British Constitution  Flexible, unwritten, monarchical, unitary and based on limited degree of separation of powers.  Executive is accountable to Parliament and the Courts when exercising political powers  It is uncodified – not contained in single authoritative document and is instead derived from statute, case law , prerogative powers, conventions and EU law. It does not mean it is not written but over a large number of sources. How would a codified constitution impact UK? A key feature of a constitution is that it is the highest law and defines who can do what and limits powers of the different arms. A written constitution would involves defining powers of parliament. Under current principle of parliament sovereignty, no parliament can bind a future parliament and can amend any area of the constitution rendering a written constitution of limited value. To be more effective would have to be higher status than parliament – this would put an end to parliament sovereignty as parliament would only be allowed to legislate to the extent of the constitution and require special procedure to amend the constitution. The courts would be able to rule on whether parliament actions were compatible with the constitution. Example of my argument: due to the uncodified nature of the UK constitution this demonstrates a high degree of flexibility, it is relatively easy to change via normal legislative procedures with no special measure required for constitutional amendments.

Arguments for a codified constitution? 1. A codified constitution would be able to fetter the power of parliament – include provisions guaranteeing fundamental rights and proper checks and balances through an independent judiciary. Key acts such as HRA could be given special protection requiring larger majority to repeal or amend.

2. Improve clarity and certainty – numerous conventions are vague and arguable too flexible allowing them to be abused. Eg. Minsiters have been able to undermine the convention of individual ministerial responsibility frequently refusing to resign even after making egregious errors. – part of argument codifying the ministerial code. 3. Certainty would reduce loopholes – situation where no one is sure of the correct procedure eg after an election the queen usually invites the leader with the most seats to form a government, but the leader must command a majority in the House of Commons. After hung parliament in 2011 it was unclear who commanded majority. Arguments against codified constitution? 1. Would reduce constitution flexibility – the flexibility has allowed the uk constitution to adapt to changing circumstances. Codification could lead to constitution being fixed in time. The UK constitution has changed substantially over the years (parliament devolved to Scotland, n- Ireland and wales, passed HRA, entered EU/left EU all with only majority in parliament. Numerous conventions have been altered – ministerial responsibility. Would this have been available with a codified constitution. Whilst the UK require majority in the commons the US require 2/3rds majority in Houses of Senate – the US have only amended their constitution once in 40 years 2. Wrong to give unelected judges such power to determine constitutional provisions with no political accountability.

If I have time read key debates in book

Sources of the constitution    

Common law Acts of parliament Retained European law Jurisprudence of European Court of Human Rights must be taken into account by UK courts in cases involving European Convention of Human Rights.  Law and custom of parliament

Common law/ case law Rules formulated by judges in the senior Courts have made a vital contribution to development of constitutional law. The constitutional role in interpreting statutes is explained in R (on the application of Spath Holme ltd) v secretary of state for the environment, Transport and the Regions – the courts must ascertain the intention of Parliament . Under normal circumstances they will look what was said and done by parliament. The judges give the words in statute their ordinary and natural meaning. The approach is objective and if it is reasonable for a statute to be interpreted in a particular way. Case law by its nature is flexible, it alters and impacts on the constitution in 3 ways:1. Judicial interpretation of statutes – judges make decisions and add new concepts ( even if we did have a codified constitution this is always going to effect the flexibility of it) e.g. R v SOSF transport ex p Factortame – HL effectively suspended AOP as in conflict with EU Law.

2. Common law has developed and added principles to the constitution such as residual freedom ( citizen free to do whatever they wish as long as not prohibited by law), right to a fair hearing, parliament supremacy. 3. Judicial review – enables court to review and determine the lawfulness of public bodies. Allows High Court to influence UK constitution by holding the state account for it actions and preventing it from acting arbitrarily. A key mechanism which the courts can impact the constitution is judicial review. Judicial opinions clarify views on the constitution and how power is held in the UK. Judges can create or add to constitutional concepts but are bound by judicial precedent. Acts of Parliament Thoburn v Sunderland City Council 2003 (Laws LJ) – defined constitutional statutes as those which condition the legal relationship between citizen and state which enlarge/diminish fundamental rights. He said that constitutional statutes include Magna Carts 1297 , Bill of Rights 1689, Human Rights Act 1998, Scotland Act 1998 In theory parliament can repeal any act but an example of constitution being less flexible is political pressure. If they were to repeal HRA there would be a public outcry. It is also not as easy to change the constitution as it can appear due to the lengthy procedure. Thoburn v Sunderland City Council 2002- Constitutional statutes such as European Communities Act 1972 cannot be impliedly repealed. European law European Union law was incorporated into UK Law by S2 and 3 of European Communities Act 1972. Rights given to people under EU law prevailed over the express terms of UK law. Section 18 European Union Act 2011 made it clear that EU law took effect subject to the will of parliament. This made constitution less flexible as parliament can not change EU law as can with UK law. However, section 1 of the European Union (withdrawal act 2018) repeals the European Communities act 1972. Rules made by the European Court of Human Rights under s2 HRA 1998 – the UK courts are obliged to take into account all the rules laid down by the European Court of Human Rights when considering a claim involving the rights contained in s1 and sch 1 HRA 1998. New rules such as those on proportionality have found their way into UK constitutional law and remains unaffected by exit from European union.

Law and custom of parliament Ancient usage – set of rules contained in the order and resolutions of HOC. Examples include:- bill be read 3 times in each house, HOC sits as committee when considering bills of certain types, procedure governing the work of select committees

Constitutional conventions Constitutional conventions are binding political rules central to the operation of the convention many of which may be stated as the same precision as laws. Dicey – laws are enforceable in the Courts and

conventions are not (there are no judicial remedies or penalties are violated) . they are highly flexible because they can be changed , created or abolished with formal legal procedures. When they are broken it can lead to a change in the law ( AG v Jonathon Cape – published diaries of Richard Crossman in Cabinet without permission this was breach of a constitutional convention. The AG applied for injunction but was dismissed ) examples are: 

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Granting of royal assent – the monarch will give the Royal assent to every bill that has passed successfully through parliament when advised by ministers. Appointment of PM – under royal prerogative the monarch has the power to appoint minsters and PM. Appointed from membership of the HOC and is normally the leader of the political party with a majority of seats in the HOC. Appointment/dismissal of ministers – no rules beyond royal prerogative at common law and those contained in statutes like House of Commons disqualification act 1975. The monarch appoints minsters upon advice from PM and minsters are individually responsible to parliament appointed from HOC and HOL. Formation of cabinet – important convention is collective responsibility – means members of cabinet do not voice dissent on government policy once a decision is taken. Minster that cannot agree should resign Opening and closing parliament – life of parliament governed by Parliament act 1911 the rules governing election are statutory. Convention that is looses vote of no confidence then leader of opposition party is appointed PM. The judiciary – judges should avoid political activity to sever all ties with political parties.

They apply to parliament and the executive and the judiciary. Read article by Robert Blackburn concerning Hung Parliament. Constitutional conventions are generally binding political rules. Conventions were forms of political behaviour regarded as binding and distinguished from non – binding usage – De smith and Brazier I Constitutional and Administrive Law 1998.

Dicey focuses on the purpose of the law and is aware that there are different classes of rules – some conventions are as important as laws. What is the jurisdiction of the Court over constitutional conventions? Diceys answer is that they are not legal rules because the Courts have no power to enforce them. The key principle is that a constitutional convention has no power in limiting the legislative power. In the case of Madzimbamuto v Lardner – Burke 1969 – although there was a convention that the UK would not legislate for Southern Rhodesia on matters within the competence of the legilstaive assemble of southern Rhodesia except with agreement. The privy council held that Parliament could legislate. The possible legal enforceability of a constitutional convention which is recognised by a statute was considered by the supreme court in R (on the application of Miller) v Secretary of state for exiting the European Union 2017. The Sewel Convention recognised in s2 Scotland Act 2016 and s 2 Wales Act 2017 states that the Parliament of the Uk will nor normally legislate with regard to devolved matters without consent. Legislation concerning withdrawal altered powers of devolved bodies and it was generally accepted that the Sewel Convention required the consent. The UK supreme court decided that the court can recognise the operation of a convention when deciding a legal question but

cannot give ruling on its scope. The validity of conventions cannot be subject to proceedings in a court of law. The devolved governments cannot enforce the Sewel convention and no legal right to veto a bill. Can the Courts do anything with a convention? Although there is no remedy for a breach they do sometimes look at them in the course of legal proceedings: 

Courts may be prepared to take constitutional conventions into account and give an opinion to their existence and extent Courts can take constitutional convention into account to interpret statutes

Sir Ivor Jennings in cabinet Government 1969 – said the existence of a constitutional convention can be determined by asking do the actors in the precedents believe that they are bound by a rule and is there a reason for the rule? In R ( on the application of Southall v Secretary of State for Foreign and commonwealth affairs 2003 – the claimant said British gov were bound by constitutional convention (would not legislate making substantial constitutional changes without approval of electorate in a referendum unless the proposal was in the election manifesto) – the COA held there was no evidence of such a convention Can constitutional conventions become law? A constitution convention can become law by statute – example s 20 (1) Constitutional Reform and Governance Act 2010 – a treaty cannot be ratified unless a minster of the crown has laid a published copy of it before parliament which has 21 sitting days to object – this was codification of the Ponsonby Rule. Parliament may recognise a convention in legislation - R (on the application of Miller) v Secretary of state for exiting the European Union 2017 – held that parliament did not intend for Sewel convention to become law. If have time read some articles at end of chapter 2 Royal prerogative Residual power retained by the monarch. Mostly exercised by the executive – flexible aspect of the constitution because it is uncodified. Government can exercise prerogative and change the way in which the constitution operates quickly and easily:   

Declaration of war and deploy troops Royal assent to bills Dissolution of parliament Appointment/dismissal of minsters.

*all of above is discussing for flexibility of UK Constitution

Does the UK really have a flexible constitution as far as it may seem? 

Statute repeal is difficult – statutes which have a large impact on the constitution may be legally repealed. However, in practical sense it is nearly impossible to repeal them without

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political, economic and social upheaval. Thoburn LJ suggesting the constitution is not as flexible as it may seem. Examples would be HRA 1998, withdrawal of fundamental right would provoke turmoil in the UK. To remove the devolution acts such as Scotland Act 2016, Wales Act 2017 and Northern Ireland Act 1998 would be politically speaking impossible. Statute enactment is slow – process of changing the constitution be enacting new statutes is a very lengthy process. Couples with high pressures on parliament time this makes the constitution less flexible and easily changeable than it may seem. Constitution conventions are deep rooted – although no legally binding, in reality some appear too profoundly established within the constitution to be removed. The fact that they are not laws makes it harder to officially remove them. Examples of deep rooted conventions are; queen givin...