Revision Notes PDF

Preview

Summary

UK SITUATION: - No written const. text - Some rules are written e., cabinet manual - Uncodified - Has constitutional system HISTORY - 17th C: attempt made after civil wars between Royalists + Parliamentarians- Cromwell ‘Instrument of Government’ but after his death document was abandoned when Charle...

Description

The UK Constitution Definition of a constitution: (a set of rules which governs an organisation) Narrow meaning: a document with special legal status that sets out the framework and functions of the organs of the state & how they operate. Bradley & Ewing: a document having special legal sanctity which sets out the framework and the principal functions of the organs of government within the state and declares the principle by which those organs must operate. Wider meaning: all the legal and non-legal rules that provide a framework for government & regulates political behaviour Wheare: ‘…the whole system of government of a country, the collection of rules which establish and regulate or govern the government. Bolingbroke (1733): ‘…assemblage of laws, institutions and customs… that compose the general system, according to which the community hath agreed to be governed.’ House of Lords Const Committee (2001): ‘the set of laws, rules and practices that create the basic institutions of the state… and stipulate the powers of those institutions.’ Thomas Paine (1792) ‘a government is only the creature of a constitution’ CONSTITUTION AS A TEXT: Ackerman: ‘constitutional moment’ e.g., - America & France 18th Century revolutions - Eastern + central Europe: 1990s after collapse of communism - When colony achieves independence e.g., Jamaica from UK Average lifespan of codified const is 17 years (Elkins + Melton) - Can have modifications e.g., 2015 Constitution of Ireland amended to allows marriage ‘without distinction as to their sex’ Features - Highest form of law in the country - Usually, a constitutional court that can rule on whether it has been breached - Rules about amendment process e.g., super-majority/ referendum - Entrenched status- cannot change by ordinary politics - ‘death’ of a constitution can occur e.g., new ruler who seizes power/ referendum UK SITUATION: - No written const. text - Some rules are written e.g., cabinet manual - Uncodified - Has constitutional system HISTORY - 17th C: attempt made after civil wars between Royalists + Parliamentarians- Cromwell ‘Instrument of Government’ but after his death document was abandoned when Charles II restored to throne - Thomas Paine 1737-1809 had key role in developing const. as a text - 18th C: British govt enacted repressive laws from fear of civil strife - 1776: Washington declared American colonies of Britain independent & American Const. drawn up - France changed from absolute monarch to const. monarch & then on to rule of Napoleon - UK: no const. moment - Since 1066, incremental, continuous development of govt

CLASSIFYING CONSTITUTIONS 1. Written and unwritten written: codified all important laws + rules on how state is governed 2. Rigid and flexible (how const can be amended) Flexible e.g., UK, where laws changed easily & no constitutional requirements (although referendum held) e.g., ECA 1972 normal Act implemented EU law Rigid e.g., Ireland- obliged to hold referendum to change const (entrenched rules) 3. Republican and monarchical: Republican e.g., USA/ France who give elected head of state significant power & other e.g., Germany whose president represents nation + above politics 4. Unitary and federal Federal: national issues for national legislature & other legislative + decision making functions divided among state/ provincial legislatures

CONSTITUTION AS A SYSTEM  Text may not be comprehensive & may not have all the rules  Text may not match how system works in reality Functions of system - Define relationship between institutions e.g., upper + lower chambers/ judicial powers - Define, protect + encourage culture where basic rights are protected

Geoffrey Marshall (2004): 4 senses of a constitution: - All legal & non legal rules that provide the framework of govt and regulate behaviour of political actors - Single instrument promulgated at a particular point & agreed to by authorisation procedure & titles ‘constitution’ - All legal rules (from statute, judicial decisions, secondary leg etc) that affect working of govt - List of statutes/ instruments that are entrenched & only amend/repeal by special procedure Constitutions above + below: Sub national constitutions: Sub-national units have own consts e.g., USA: federal const. for whole country & each of 51 states have own/ Canada’s 10 provinces EU: ‘supranational’ govt structure- has own institutions which operate under TEU + TFEU ECHR: international treaty- Strasbourg court. Prompts changes in legislation & govt practice e.g., Hirst v UK

Sources of the constitution

Cabinet Manual 2011 sets out sources of constitution: - Statutes - Royal prerogative Judicial decisions

1. Statutes: Some statutes are seen as ‘constitutional’ as they are fundamental to parts of const. law: Magna Carta 1297/ Bill of Rights 1688/ Act of Settlement 1700/ Union with Scotland Act 1707/ Union with Ireland Act 1800/ Parliament Acts 1911 & 1949/ ECA 1972/ HRA 1998/ RPA 1983/ Scotland act 1998/ Govt of Wales Act 1998 + 2006/ NI Act 1998 Defining constitutional statutes: those Acts which define the role & powers of the state/ rights of citizens. Dicey’s orthodox view: ‘no marked or clear distinction between laws which are not fundamental or constitutional and laws which are’ Andrew Lansley: if it directly impacts on relationship e.g. between crown and Parliamentary & directly relates to things e.g., relationship between ourselves and the devolved administrations, it tends to form a const bill’ Thoburn v Sunderland City Council (2002): Laws LJ’s test: Conventions: Not: habits/practices are only a. conditions the legal relationship between citizen and state in some general overarching manner descriptive of what happens. b. enlarges or diminishes the scope of what we would now regard as fundamental const. rights Understandings are mutual agreements on what 2. Common law: is appropriate but does not have sanction for Written judgments of higher courts have contributed to const. principles. misunderstanding & don’t regulate conduct. Laws are certain, identifiable from legal sources. e.g., Witham case- executive cannot abrogate right of access to justice Conventions are less in origins + A v Home sect 2005- prohibited to use torture to gain evidence Difference between lawcertain + convention: meanings. Pierson v Home Sect: lawful sentence cannot be retrospectively increased AV Dicey (1885): ‘conventions, understandings, habits or practices which, though they may 3. International law + treaties regulate the… conduct of the several members of UK has dualist system so international law becomes source of law if expressly the sovereign power… are not in reality laws at all incorporated by legislation. Const reason: parliamentary supremacy- govt should not since they are not enforced by the courts.’ Rules be able to create laws not agreed to by parliament. in the ‘strictest sense’ are laws enacted by statute Incorporated treaties: courts should use and apply them to cases or common law & enforced by courts Unincorporated treaties: courts should interpret in a way that assumes it was Conventions can regulate conduct of officials etc intended to conform to UK’s international obligations but are not enforced in courts a. Treaties: Parliament signs/ ratifies treaties & must pass legislation to incorporate it NW Barber (2009): laws + conventions should be into UK law viewed as a spectrum & rules can shift from being b. Customary international law: ‘widespread and consistent conduct of states’ and conventions to laws e.g., Ministerial Code has become law-like as the ‘belief that such conduct is required because a rule of law renders it obligatory’ ministers have duty to follow rules 4. Conventions: Devolution: The Sewel Convention that UK Rules that are not laws but are rules of practice that are regarded as binding (not Parliament has legislative power over Scotland legally enforceable). became legal rule in Scotland Act 2016 Sir Ivor Jennings (1959): 3-part test: Enforcing conventions: 1. What are the precedents? Dicey: violating convention can lead to breach of 2. Did the actors in the precedent believe they were bound by the rule? law Jennings: breach of convention often does 3. Is there a good reason for the rule? not break law Concordats, codes etc: Rawlings: ‘administrative quasi-legislation’ or ‘pseudo-contract’ - Concordats or ‘memoranda of understanding’ are agreements to create a convention to regulate a particular relationship - Codes: conventions written down & published by one part of govt but are not subject to negotiation e.g., Ministerial Code

FUNCTION OF A CONST:

 Jennings ‘flesh which clothes the dry bones of the law’ - Legitimacy for state and  Examples of conventions: MINISTERIAL RESPONSIBILITY/ ACCOUNTABILITY, PM is member of HC, Salisbury governance Addison, Sewel, granting Royal Assent, Queen appointing PM, govt must consult Parli for deploying armed LEGAL SOURCES: Rules for: forces abroad (recently developed convention) - STATUTE/ Acts - Limiting govt power  Conventions are politically enforced rather than legally - Common law - Democracy through elections Courts and conventions: - Royal prerogative Regulate relationship  Miller case: Judges … are neither the parents nor the guardians of political conventions; they are- merely - EUbetween law & International law observers. — Majority judgment (Sewel convention triggered that devolved legislatures should be consulted state andoncitizenNON-LEGAL SOURCES: matters relating to the legislative competence of devolved legislatures) - Const conventions - Regulate relationship between  AG v Jonathan Cape 1976: Crossman diaries publication. Convention of collective responsibility thatexecutive, cabinet legislature - Law customs of andand judiciary meetings are confidential- court ruled in favour of govt but 10 yr limit parliament - How constitutional actors should  Carltona ltd v Commissioner of works 1943: Carltona principle: when a central govt minister is in power, can - Const writers e.g. Dicey behave delegate a senior civil servant to act as the secretary of state - Const principles e.g., rule Values and principles respected by state  Turpin & Tomkins: ‘Conventions are always emerging, crystallising and dissolving and it is sometimes of law, accountability, parli e.g., rule of law, democracy questionable whether a convention has been broken or has simply changed’ sov.

CONSTITUTIONS HOW UK CONST WORKS

Westminster model: - Govt drawn from lower House HC - Parliament has supreme law-making authority, unchecked by const court - Ministers of govt held accountable by diff systems Govt held in check by Parliament: - Limited opportunities for backbench MPs and Lords to introduce private member’s Bills - Departmental select committees hold govt ministers in check Const court: - UK has a Supreme Court but not same as other SCs e.g., US - UKSC does make important decisions that impose constraints on govt - CJEU: enforces EU law on UK - ECtHR makes decisions on rights e.g., liberty of suspected terrorists/ prisoner voting Delegated legislation: - Large proportion of UK law e.g., 1290 SI’s made in 2017 & important detailed areas of law e.g., welfare benefits - Parliamentary scrutiny of del leg is minimal 2/3rd not examined by MPs or Lords l/common law constitutionalism: DEMOCRACY (ensured by written consts in other countries) fa DEMOCRACY: sses Series of reforms an Citizens have a say in matters of the country + laws Representation of the People Act 1832: extended right to vote to men of de In the Westminster model, it is assumed that law is property ju best made by representatives of the people. Second reform act 1867 working class men enfranchised co DIRECT DEMOCRACY: gal 1884 male agricultural labourers could vote ar Referendums e.g., EC in 1975/ Scottish independence/ up EU membership 2016 s 1869 women of propertied classes could vote E-petitions lim 1928 after suffragette movement- universal suffrage for women ru Social media macy Democracy came by evolution, not revolution in UK - Undemocratic - judges have been developing const rules for long time e.g.: Case of proclamations 1611 that king can only make new laws JAG Griffiths: judges from upper class background + schooling through parliament have more conservative views (they rule against certain groups Entick v Carrington 1786 king’s messengers trespassed without e.g., trade unions and students) Prof Tomkins: ‘… Parliaments will always enjoy greater legal authority Against political constitutionalism: democratic legitimacy than courts.’ - govt/ executive is not checked on by a body Prof Loughlin:  const. arrangements are provisional ‘arrangements of - govt may create laws that do not protect rights e.g., reduce access to justice governing are in a permanent state of disequilibrium’ - judges cannot check validity of laws passed  many current codified consts have gaps - can lead to tyranny  executive still needs to pass laws even if const  current process allows flexibility + speed in passing laws - rough party-political debates leads to less refined laws Prof Jowell:  respect for rights is key in democracy AGAINST CODFICATION  judges should be able to determine if a law infringes the rule of law or a constitutional fundamental

CONSTITUTIONALISM- all institutions of the country are confined by the terms of a constitution: Suggests limitation & separation of powers, doctrine of accountable govt & protection of rights + freedoms

CODIFICATION OF THE UK CONSTITUTION: Last 25 years, codified in terms of being written, but not as a conscious decision to codify and collate it. Codification is not an issue on the political agenda. Politicians enjoy the flexibility as it means less constraints on their powers. Only Lib Dems have advocated codification.

Kenneth Wheare: ‘constitutions spring from a belief in limited government.’ DOES THE UK HAVE A CONST: Griffiths 1979: ‘the constitution is no more and no less what happens’

CONSEQUENCES OF UNWRITTEN CONSTITUTION - No law higher than Act of Parliament - Parliamentary supremacy - No formal/ special process to change const. system: change occurs quickly BUT ill-considered proposals can become law - British const. has become unstable due to reforms of devolution/ HRA 1998/ EU membership - No formal restraints on exercise of power - No federal system can be established as written const. needed to prevent Westminster taking back powers - Protection of rights mainly by Parliament - Flexible + not rigid - No obligations for referendums for const. change

Jennings 1959: ‘… the document itself merely sets out rules determining the creation and operation of governmental institutions and obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is used to describe those rules.’ HL Select Committee on the Constitution 2002: ‘The British constitution… is not unwritten- a good part of it is written- but it is uncodified.’ Written constitution: - would mean courts can judge validity of laws- UKSC is unlike other supreme courts - highest source of powers - relationship between citizen and state set out - elections/rights e.g., free speech would be content for the constitution for example of countries coming out of a military dictatorship - for already democratic country- it would focus on forums etc and the powers of institutions House of Commons Political and Const reform report 2014-15: 3 options as basis for codification: 1.Constitutional code: document without statutory authority that sets out existing elements of const + workings of govt. 2.Constitutional consolidation Act: consolidating of existing const. laws from statute, common law, conventions & parliamentary practice AGAINST CODIFICATION: FOR CODIFICATION:  Unnecessary, undesirable + not British  Everyone would know the law, rules, instructions that govern  Unwritten nature is a source of ‘national pride’ ministers, civil servants etc.  Flexible  Would be accessible to all  Easier to resolve problems as they arise  Encourage participation in politics  More litigation in courts if written  Symbol of national identity  Politicises judiciary- check if govt leg complies with const  Parliament/ executive would be more accountable  There are already checks + pressures on ministers  Highlight sovereignty of people  Practical issues in preparing + enacting  Some const laws would need special procedures  No genuine popular support  Make British values clearer  Low priority  Conventions would be more legally enforceable & restrict  Would take too long to create & would distract from other ministerial powers important current affairs  Destabilising effect on country 3.Written constitution: document of law by which UK is governed, relationship between state + citizens, amendment procedure & elements for reform

HCPC March 2015 final report: purpose was only to set out arguments & show how codification may be achieved. OTHER ISSUES: -Democracy and rights would be - How much detail? If it is too vague, there will too much scope for interpretation. If too guaranteed in const detailed, it will go out of date often -Who will codify it? How? What - Average lifespan is only 17 years before it is redrafted goes in the const? too many Acts - Difficult to define rights & const issues e.g., abortion, employment - Needs support of the public - Courts roles would change It has been a more piecemeal change: Bogdanor: ‘an unprecedented period of constitutional change, an era of constitutional reform which began in 1997 and shows no signs of coming to an end’ Dawn Oliver; ‘no master plan or coherent programme’ of devolution but rather a series of ‘pragmatic responses to political pressures and perceived problems, on an ad hoc, incremental basis’. (Regarding Labour changes of HRA 1998/ devolution acts 1998)

Parliamentary sovereignty/supremacy HLA Hart (1961): the ‘ultimate rule of recognition’ Dicey: ‘the very keystone of the constitution’ Barnett: ‘… as long as judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.’ HC European Scrutiny Committee: ‘a more exact term for the legal doctrine is ‘legislative supremacy,’ whereby the power of the Queen in Parliament to legislate is subject to no legal limitations, and the courts have no power to review the validity of Acts of Parliament’ PS has higher status than the rule of law Traditional view AV Dicey’s 3-part explanation: 1. ‘Parliament… has… the right to make or unmake any law whatever’ 2. No Parliament may be bound by its predecessor or bind a successor 3. No person or body may question the validity of Parliament’s enactments- ‘cannot… restrict its own powers by any particular enactment.’ PARLIAMENT’S POWERS & court statements on PS Unconstitutional Acts:

Enrolled bill rule: Once a bill passes through Parliament and is enacted, the courts assume that all rules of procedure in the enactment process were properly followed and cannot challenge the validity of the Act on the basis of procedural irregularities. Bill of Rights 1869 recognised PS doctrine and prohibits judicial review and questioning of ‘proceedings in Parliament.’ Edinburgh & Dalkeith Rly Co v Wauchope (1842): (UKHL rejected argument that an Act was invalid as the claimant was not given notice of it according to the Standing Orders.) Lord Campbell: ‘all that a court of justice can look to is the parliamentary roll…’ British railways Board v Pickin (1974): (Mr Pickin, a campaigner in Somerset to keep a railway line open that a private Act should be set aside due to alleged fraudulent statements in parliamentary proceedings.) Lord Reid: ‘the court has no concern with the manner in which Parliament… preforms these functions.’

whether the process to be adopted in relation to the HS2 project will be compliant with the Directive. The hybrid bill procedure conformed to EU requirements. ‘Where national law is constitutionally significant, the court may prefer to follow that rather than the EU rule.’ – Le Sueur ‘The HS2 judgment envisages a far richer constitutional order’- Mark Elliott

QUESTIONING THE TRADITIONAL VIEW: Manner and form & entrenchment: Entrenchment in the ...