Transcript THE LANGUAGE OF A LEGAL SYSTEM

THE BRITISH
CONSTITUTION
Language and Sources
Alison Riley
This presentation is linked to
Legal English and the
Common Law
(2nd ed. Cedam, Padova)
By Alison Riley
Chapter 2 The Language of a
Legal System
2.1 Introduction
2.2 Legislation and the Legislature
WHAT IS A CONSTITUTION?
• A legal document?
• A set of rules and rights?
• A fundamental law?
WHO IS AFFECTED BY A
CONSTITUTION?
• The people?
• The rulers and state organs?
Consider …
• The Italian Constitution
• The U.S. Constitution
• Any other constitutions you have heard of:
• The Constitution of South Africa:
• Signed by Nelson Mandela in 1996 in 11 languages
• The French Constitution (Vth Republic)
• A future constitution of Padania?
• A future Scottish constitution?
… and the British constitution?
Does the UK have a
constitution?
• Of course – it’s not an anarchy!
• The British constitution is unwritten:
i.e. there is no single constitutional text
X “the Constitution” X
• Even if many written constitutions in the world today
have been shaped by the Westminster model of
government
A constitution is …
• the system of rules defining the composition,
powers and relations of the state organs:
• the legislature, the executive, the judiciary
• the head of state: (UK) the monarchy
• The system of rules regulating relations between
the state and individuals:
• civil liberties, individual rights and duties
• the scope and limits of state powers in relation to the
individual
The monarch
Queen Elizabeth II
The judiciary
the common law
The executive / The legislature
The Prime Minister
/ Parliament
Compare the Constitution of
the Italian Republic
Principi fondamentali
• Art. 1
• L'Italia è una Repubblica democratica,
fondata sul lavoro.
• Form of state: a democratic republic
• La sovranità appartiene al popolo, che la
esercita nelle forme e nei limiti della
Costituzione.
• Sovereignty belongs to the people
• Sovereignty is exercised within constitutional limits
Parte prima
DIRITTI E DOVERI DEI CITTADINI
• TITOLO I
RAPPORTI CIVILI
• Art. 13.
• La libertà personale è inviolabile.
• Non è ammessa forma alcuna di detenzione,
di ispezione o perquisizione personale, né
qualsiasi altra restrizione della libertà
personale, se non per atto motivato
dell'Autorità giudiziaria e nei soli casi e
modi previsti dalla legge.
Compare the Constitution of the
United States of America
Preamble:
• We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare,
and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for the
United States of America.
ARTICLE I
Section 1
All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a
Senate and House of Representatives.
The US Constitution
• Written by the framers in 1787
• Entered into force in 1789 after ratification
• Protects individual liberties in Article 1 Section 9 and in
the “Bill of Rights”
– (first 10 amendments, added 1791)
• Is entrenched: amendments only by special legislative
procedure (Article V)
A constitution
is normally …
- antecedent to
government
– a superior set of rules,
entrenched:
• Takes priority over
‘ordinary’ law
• Can be amended only
by special procedure
but in the UK
– The constitution is part
of government
– Does not consist of
superior rules, is not
entrenched:
• Is an integral part of the
law
• No special
parliamentary
procedure
A constitution
is normally …
but in the UK
– an act of foundation:
• After a war, revolution,
constitutional crisis
– Written:
• In a single constitutional
text:
• ‘The Constitution’
– The UK has no act of
foundation:
• Evolved over centuries
– It is unwritten
• No single constitutional
text – a variety of
sources
• The constitution
Why is the British constitution so
different?
• It has evolved gradually over many centuries
• There has been no act of foundation:
• after a war, revolution, crisis
• It is unwritten:
• Not established in a single written instrument
• It has a variety of different sources:
• Legislation, judicial precedent (common law), conventions, custom,
European Union (EU) law, ECHR law, and others
• It is flexible, not entrenched:
• there is no special legislative procedure for reform
What are the sources of
the British constitution?
A variety of different sources:
– Statute law
– Common law (judicial precedent)
– Constitutional conventions
Also:
• EU law, ECHR law, legal treatises, the law and customs
of Parliament, the Royal Prerogative
The importance of statute law
• A statute is an Act of Parliament
(legislation, enacted law, laws)
• Parliamentary sovereignty – the fundamental
doctrine of the British constitution:
– there are no legal limits to the power of UK
Parliament to legislate
– one Parliament cannot bind another
The Queen in Parliament
• the legal name for the legislature (or King …)
• composed of:
– the monarch (King or Queen)
– the House of Lords (peers: Lords Spiritual, Lords Temporal)
– the House of Commons (elected Members of Parliament, MPs)
• The enacting words:
• BE IT ENACTED by the Queen's most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows:– this formula introduces the text of an Act of Parliament
– expresses the authority of the legislature to create law
Examples: statute law
• Major source of the constitution. A ‘written constitution’
today?
• Important constitutional reforms in recent times:
•
•
•
•
•
European Communities Act 1972 – EU
Human Rights Act 1998 – ECHR
Scotland Act 1998 – devolution
Constitutional Reform Act 2005 – Supreme Court of the UK
European Union Act 2011
• Common law ‘constitutional statutes’
– Lord Justice Laws in Thoburn v Sunderland CC (2003)
The importance of common law
• The British constitution has no written charter of
rights (or Bill of Rights)
• The courts have traditionally defended the rights
of the individual against state encroachment
• Are ‘Convention rights’ (ECHR/Human Rights
Act 1998) now effectively a charter of rights?
An example: part of the
common law
• A judicial precedent
• The case of Entick v Carrington 1765
• FACTS: The Home Secretary authorised a raid on the home of Mr
Entick (a printer and Opposition sympathiser) with a ‘general
warrant’ (mandato); papers were taken away.
• CIVIL CASE: trespass to property (land and goods)
• DEFENCE: general warrant, state necessity; custom and tradition
• DECISION: Abuse of power: no positive law (statute or precedent)
authorised the interference– “If it is law, it will be found in our books. If it not be found there, it is not
law.”
– Jury awarded £300 damages to Mr Entick
• LAW: Placed limits on the power of the Crown to interfere with a
citizen’s person or property without lawful authority
Example: Rice v Connolly
• High Court of Justice (Divisional Court)
(1966)
– FACTS: Police officers asked Rice questions:
• Where are you going?
• Where have you come from?
• What’s your full name?
Mr Rice was behaving suspiciously / early morning /
break-ins in the area
Mr Rice refused: “If you want me, you will have to
arrest me”
The decision
• Rice was arrested and charged with:
– wilfully obstructing the police contrary to s. 51(3) of
the Police Act 1964
• Lord Parker, CJ: statutory interpretation
‘wilful’ = not merely intentional, but without lawful excuse
A judicial precedent – part of ‘the
common law’
In the case of:
Rice v Connolly
“Though every citizen
has a moral duty to assist
the police … there is no legal
duty. The whole basis of
the common law is the right
of the individual to refuse to
answer questions put to him
by persons in authority, and
to refuse to accompany
[them], short, of course, of
arrest.”
Lord Chief Justice Parker
High Court of Justice 1966
The law
• The general principle of the common law is that it is not a
criminal offence not to answer questions (especially if
the answer would be incriminating)
• But: under common law and statute, there are many
exceptions:
–
–
–
–
•
Motorists (poss. Accident / traffic offence)
Official secrets
Investigating companies
Terrorism, drugs etc.
Many common law rights have been limited by statute
Constitutional conventions
• What are conventions of the constitution?
– Unwritten ‘rules’
– political practices considered binding by the actors in
the constitution
– Not laws, not judicial precedents: usages
• Essential to the constitutional monarchy and
democracy:
• The Queen must act on the advice of her ministers
• The Prime Minister is the leader of the party with a majority of
seats in the House of Commons
Historical landmarks
1066 William I ‘The Conqueror’ - the Duke of
Normandy - invaded from France.
Land was recorded in the Doomsday Book
• Henry II made important legal reforms relating
to application of common law
• King John: Magna Carta 1215 (and subsequent
versions) limitations on Royal authority imposed
by the Barons (the ‘people’)
Some significant steps in history …
•
Henry VIII broke away from the Roman Catholic Church 
head of the Church of England
•
Elizabeth I ruled with advice from her ministers but also with reference to
Parliament
•
Elizabeth I died without an heir. 1603 Thrones of Scotland and England
were united under James I (James VI of Scotland), son of Mary Queen of
Scots.
•
•
Charles I believed in the divine right of kings.
He tried to rule without Parliament  constitutional crisis
•
Civil war between King and Parliament (1642-1649)
– the ‘Roundheads’ (Parliament creates New Model Army)
– and the ‘Cavaliers’ (loyal to the King)
The trial of Charles I
• Parliament tried the king for:
– waging war against his people and against Parliament
• Westminster Hall, 20th January 1649 :
– Trial commenced before 50 Members of Parliament
– King refused to recognise legality of proceeding – he
claimed to be above the law
– 27th January: King found guilty
– Sentenced to death by execution
– 30th January: King’s execution in Whitehall
The King’s last words
• “For the people I truly desire their liberty and
freedom as much as anybody whatsoever;
• but I must tell you that their liberty and freedom
consists in having government, those laws by
which their lives and goods maybe most their
own.
• It is not their having a share in the government;
that is nothing appertaining to them;
• a subject and sovereign are clean different
things …”
An interlude
• 1649-1653 The Commonwealth (Republic)
• 1653-1659 The Protectorate:
– a ‘monarchy’, but not in name
– Lord Protector - Oliver Cromwell (then his son, Richard)
– Cromwell ruled with:
• A Council of 15
• A Parliament of 400
• 1660 Restoration of the monarchy:
– Son of Charles I, Charles II (1660-1685)
– James II (Catholic rule) (1685-1688)
1689: a new
constitutional settlement
Glorious revolution/English revolution
•
•
William III and Mary II were offered the throne in 1689 “to rescue the nation
and the religion”
BUT strict conditions were attached: a ‘contract’
BILL OF RIGHTS 1689 - shift in the balance of power 
Parliamentary sovereignty
–
–
–
–
–
–
No army could be raised without parliamentary approval;
Taxation required parliamentary approval;
no special courts for political ends;
free elections and annual parliaments;
freedom of speech inside Parliament;
protestant monarchy guaranteed (+ Act of Settlement 1701)
Westminster – the Houses of
Parliament
Looking back at a
dramatic period in history
•
•
•
•
•
•
•
Revolution and civil war (1642-1649)
the legal execution of a King (1649)
an interlude of republican government
(1649-1660)
Restoration of the monarchy
The glorious revolution (1689)
Between 1649 and 1659 England had
four constitutions
Revolution or evolution?
• In modern times:
– no single event has created the need for
comprehensive revision of the constitution
• The British constitution:
– ‘has evolved in phases reflecting the political, social,
and economic experiences of many centuries’
Peter Leyland, op.cit.
• It is a flexible constitution: it is not entrenched
The United Kingdom
• Today: the United Kingdom of Great Britain and Northern Ireland
(UK or GB) –
– England – Scotland – Wales – Northern Ireland (Ulster)
– London – Edinburgh – Cardiff - Belfast
• Wales: annexed to England in 1536 (a separate administrative state
with devolution in 1999)
• Scotland: Act of Union 1707 created a single Parliament for Great
Britain at Westminster. Devolution legislation established a Scottish
Parliament (2000) and executive (Scotland Act 1998). But in future?
• Ireland became part of the UK in 1801; the South separated again
in 1922 - today the Republic of Ireland (Eire). But Ulster remains in
the UK and has its own Assembly and executive thanks to
devolution.
The United Kingdom
The United Kingdom of Great Britain and Northern Ireland:
– ‘The United Kingdom’
‘the UK’
‘Britain’
UK / GB
The UK in Europe
• EC first enlargement: 1973
– UK, Denmark and Ireland became Member
States, signing the Treaty of accession
• National legislation:
– European Communities Act 1972 gave effect
to the obligations of membership
Now examine
• The Bill of Rights 1689
– See selected extracts in Legal English and
the Common Law page 49
• Suggested website for historical
documents: www.britannia.com
For further reading
• Legal English and the Common Law
Alison Riley (Cedam, Padova, 2a ed 2012)
Chapter 2 :
The Language of a Legal System
Laws, courts and constitutions
Suggested follow-up in Legal
English and the Common Law
• Chapter 2, in particular pages 49-69
– 2.1 Introduction
• Including Bill of Rights 1689
– 2.2 Legislation and the legislature
• Including 2.2.3 Constitutional monarchy
• Task 3
– 2.3 Consulting legislation: British constitutional reform
(Scotland Act 1998)
• Tasks 4 and 5
– 2.6.1 Legislation as a source of constitutional law
Suggested reading
• The Constitution of the United
Kingdom. A Contextual Analysis
by Peter Leyland (Hart Publishing, Oxford, 2nd ed. 2012)
Chapter 2: The sources of the constitution
La Costituzione
di Valerio Onida (Il Mulino, Bologna, 2 ed. 2007)
Cap. 1 Guardando al passato: l’idea di Costituzione (lo
strano caso della Gran Bretagna…) (da p. 7 a p.23)
Suggested websites
• www.royal.gov.uk – UK monarchy
• www.parliament.uk - UK Parliament
• http://europa.eu - European Union
• www.legislation.gov.uk - UK legislation