Transcript British Constitutional Questions

British Constitutional Questions
What is an unwritten constitution?
• It does not mean that the UK constitution does not have written
sources. In fact it could be said that all the sources are in some
sense written.
• It means the constitution was not promulgated at one time.
Rather it has evolved over many generations.
• The sources are diverse and so the extent of the unwritten
constitution is uncertain. E.g. does it include all statutes and all
cases, if not, which ones?
• Unlike most other constitutions, including the Italian
Constitution, there is no special method of changing the
constitution, no formal method of entrenchment
(rafforzamento).
Describing the unwritten constitution
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What are constitutional statutes?
Magna Carta 1215: Barons placed limitations on royal authority
and recognition of rights e.g. right to fair trial.
Bill of Rights 1689: monarch must rule through Parliament
Great Reform Act 1832: extended franchise and distributed
seats to unrepresented towns.
Reform Act 1918: adult suffrage, votes for women over 30.
Parliament Act 1911: restricted power of House of Lords
European Communities Act 1972: EU membership and it
qualified sovereignty
Devolution legislation e.g.Scotland Act 1998, GWA 1998, NIA
1998
Human Rights Act 1998: European convention effectively
incorporated into UK domestic law.
Describing the unwritten constitution:
What is common law?
• Judge made law rather than statute law
• It develops incrementally from decision to decision
• Based on binding precedent:
Higher courts bind lower courts. Three basic levels can set
precedents: High Court, Court of Appeal, House of Lords (soon
Supreme Court) e.g. if question is decided by House of Lords
and similar case later comes before the Court of Appeal, High
Court or County Court the decision must be followed.
• Not all the judgment is binding, only the ‘ratio decidendi’ i.e.
reason for deciding. Identifying the ratio is a technical question.
Examples of Constitutional Cases
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Whole areas of law are formed from common law decisions e.g. contract and
tort but some decisions significant for constitutional reasons:
Principles of justice: Dr Bonham’s Case (1610) ‘no man can be a judge in his
own cause’. This case held that: ‘The king has no prerogative, but that which the
law of the land allows him’ but now recognised that statute law overrides
common law.
Five Knights case (1627) King’a consent to his prerogative being examined by
the courts;
Ship Money Case (1637) prior to the Civil War (1642) contesting general
attempt to introduce a form of taxation without the authority of Parliament;
Entick v Carrington (1765) established that: No government measure which
infringes my liberty is lawful unless it is authorised, and the burden is on the
executive to prove authorization.
Council for Civil Service Unions v Minister for the Civil Service (1984)
GCHQ Case: Confirms judicial review of the prerogative and statement of the
grounds of judicial review.
Summary of sources
• Statutes: particularly ones dealing with constitutional matters.
• Common law: cases which establish constitutional principles;
• Law and custom of Parliament separately claimed from monarch
i.e. right of parliament to regulate its own proceedings;
• Constitutional and legal treatises e.g. Dicey, Bagehot, Jennings,
Wade. Academic accounts of the constitution elucidate how the
constitution works;
• EU law and ECHR law since 1973 and 2000 respectively;
• Constitutional conventions: these are rules of constitutional
practice not enforceable in the courts but which determine how
constitutional actors behave in many situations.
Why conventions are so important?
• The unwritten constitution is incomplete, in the sense that much
of what actually happens is determined by conventions i.e.
constitutional practice.
• Key conventions represent the passing of power from the
monarch to democratic institutions or the way democratic
institutions are expected to behave.
• Up until Civil War 1642 kings could veto legislation, decide when
to call Parliament, chose ministers/government etc. Each of
these powers is now constrained by a strong convention.
• Royal assent and regular parliaments become the norm
following Bill of Rights 1689
• As Parliament assumed a higher profile the King or Queen
became increasingly obliged to select the leader of the strongest
grouping to form a government. Now there is a strong
convention requiring the leader of largest party to become PM
and he or she, not the king, selects the government.
Breaking conventions
This rarely happens but ...
If a convention is broken it will often lead to a
constitutional crisis and may result in the passage of
a law to prevent it occurring again e.g. House of
Lords broke convention acknowledging
predominance of elected House of Commons over
finance by blocking 1909 budget. After two elections
and negotiation, including threat by King to create
sufficient peers to override conservative majority in
upper house, Parliament Act 1911 confirmed the
convention and made it thereafter impossible for the
Lords to veto financial legislation again.
Ministerial responsibility and interpreting
conventions
Individual ministerial responsibility describes the relationship of
constitutional accountability between ministers, the civil service
and Parliament. In theory the Secretary of State formulates
policy and is answerable before Parliament for that policy. On
the other hand permanent and neutral civil servants implement
policy. What happens when things go wrong? Should ministers
resign? Very rare for them to do so for policy failings but they
are answerable to Parliament. Changes to the way government
operates arguably undermines the convention e.g. special
advisors, new ways of managing civil service and increasing
reliance on private sector to deliver policy.
Government must maintain its majority in
House of Commons
• This convention lies at the core of the constitution.
• In order to remain in power a government must
command a majority in the elected house. If there is a
vote of confidence and it loses its majority the PM
goes to the Queen or King and election will be called.
• The reason for this convention is obvious. A
government without a Commons’ majority is
incapable of passing legislation.
• 1979 PM Callaghan loses such a vote and an
election is called. Mrs Thatcher then becomes PM.
What is ‘elective dictatorship’?
In light of the convention that the government must maintain its
Commons majority to survive, the party managers (whips) can
put enormous pressure on MPs of the ruling party to support the
government line or risk defeat in a vote of confidence (and, in
consequence, an election). In practice, this means that the
government can be sure to get its legislative programme
enacted. The fact that MPs of the governing party nearly always
are ‘lobby fodder’ allows the PM, cabinet (party machine) to
steamroller policy through parliament and that its scrutinizing
capacity may be compromised.
The parliamentary system in Italy (Article 94) also depends on
the government enjoying the confidence of parliament, but until
recently with less stability because the government has tended
to be formed from a coalition of large and smaller parties, any
one of which might break lose triggering a vote of confidence.
Is an unwritten constitution flexible?
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Codified constitutions often have a protracted amendment procedure.
USA: two thirds majority in both houses plus ratification by three
quarters of the states. Italy: double vote in parliament plus referendum,
unless two thirds majority achieved on second vote. Relatively few
amendments allow basic principles to remain and the constitution to be
a lasting settlement.
No such mechanism in UK because doctrine of sovereignty means that
any act of parliament can express repeal a previous act. Supposedly
permanent Act of Union with Ireland 1800 was effectively overridden by
the formation of the Irish Republic and eventually repealed.
On the other hand, where ‘constitutional statutes’ e.g. European
Communities Act and devolution have been supported by referendum it
is argued that it would be wrong to repeal such measures without also
holding a referendum.
Does the British Constitution have any
fundamental principles?
(1) Sovereignty of parliament arising from the Bill of Rights is the
grundnorm which recognises that parliament, in theory, is the
source of all power and that it has an unlimited capacity to pass
or repeal any law. Suggests that there is no higher order law
and that Parliament cannot bind its successors. Has sovereignty
actually shrunk? EU membership, devolution and Human Rights
Act qualifies sovereignty in important respects. According to
Dicey Sovereignty operates in harness with his second principle.
(2) Rule of Law qualifies sovereignty because this principle
recognises the predominance of regular law over arbitrary
power and equality before the law. In other words it requires all
bodies, including the government, the police, army etc to act
lawfully. It also suggests a separation of powers by recognising
the capacity of the courts to intervene decisively if any public
body acts unlawfully by exceeding its powers.