Transcript Document

Peter Leyland
Sources of the Constitution
Introduction
• Sources of the UK constitution are the main focus of
today’s lecture.
• We will see that there are a wide range of sources.
• Contrast made with codified US constitution
• There has been recent debate over what might be
termed ‘constitutional statutes’.
• Review of other constitutional sources.
• Defining conventions and understanding their
constitutional role.
Why does the UK have an uncodified
constitution?
The British Constitution is not contained in any one document nor
is there such a thing as higher order law, entrenchment.
The Constitution evolved over time and this evolution was first
about qualifying the absolute power of the King.
Magna Carta 1215 imposed limitations on Royal power.
Bill of Rights 1689 laid out basic rights but mainly recognised the
shift of power from the King to Parliament. No taxation, army etc.
without Parliament.
Great Reform Act 1832 important step in redistribution of seats and
the grant of the right to vote.
Parliament Acts 1911 and 1949 imposed limitations on the powers
of the House of Lords.
Contrast with USA
Article I – ‘All the legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of
a Senate and House of Representatives.’
Article II – ‘The executive Power shall be vested in a President
of the USA. He shall hold office during the term of four years …’.
Article III – ‘The judicial power of the United States shall be
vested in one Supreme Court.
Article IV - ‘Full faith and credit shall be given in each state to
the public acts, records and judicial proceedings of every other
state. … The United States shall guarantee to every state … a
republican form government. (Federal system established.).
Article V - Defines method of amendment.
Sources of the Constitution
If we wanted to describe the UK constitution it would consist of a
range of different sources.
•Statute law: some are of central significance, see below
•Common law e.g. Entick v Carrington [1765]
•European Union law since 1973 – Multi-Layered
•European Convention on Human Rights since HRA 1998 in force
since October 2000.
•Legal treatises e.g. works of Dicey/Bagehot etc.
•Law and custom of Parliament, which regulates itself but is outside
the jurisdiction of the courts
•Royal Prerogative powers of the monarch, now normally exercised
by ministers
•Constitutional conventions of special importance to flesh in the
missing bits.
What are constitutional statutes?
Bill of Rights 1689 - limited powers of monarchy
Act of Settlement 1700 - protestant succession
Act of Union with Scotland 1707 – combined English and
Scottish Parliaments.
Reform Acts of 1832/1918 right to vote
Parliament Act 1911 (restricted powers of House of Lords)
Statute of Westminster 1931 (from Empire to
Commonwealth)
European Communities Act 1972 incorporated Treaty of
Rome i.e. EEC membership. EU law part of domestic law for
the first time.
Devolution legislation e.g. Scotland Act 1998
Human Rights Act 1998 incorporated ECHR
Thoburn v Sunderland City Council [2003]
Laws LJ : 'In the present state of its maturity the common
law has come to recognise that there exist rights which
should properly be classified as constitutional or
fundamental ... And from this a further insight follows. We
should recognise a hierarchy of Acts of Parliament: as it
were "ordinary" statutes and "constitutional" statutes'.
Recent constitutional statutes
Constitutional Reform Act 2005 consolidated separation
of powers, created a Supreme Court for the UK and
transformed the system of judicial appointments.
Constitutional Reform and Governance Act 2010 put
some prerogative powers e.g. the ratification of treaties and
the management of the civil service on a statutory footing.
Fixed Term Parliaments Act 2011 qualifies power of PM
to call elections by setting elections at 5 years unless
government falls following a vote of confidence.
Common law
Case law / judicial precedent - case law of decisions which expand the
common law and interpret statutes. For example, individual rights in
relation to police powers, Entick v Carrington (1765). This case was
exceptionally important because the courts were prepared to stand up
against the highest authority. An attempt by the government to seize
papers and arrest without a warrant.
Lord Camden ‘The great end, for which men entered into society, was to
secure their property. That right is preserved sacred and incommunicable
in all instances, where it has not been taken away or abridged by some
public law for the good of the whole.’
But decisions of the court may be amended / overridden by a later statute,
e.g. Burmah Oil v Lord Advocate [1965] and the subsequent War
Damage Act 1965. Statute law will prevail.
European Union Law
From 1973 EC law (now EU law) became a source of the
constitution, applicable in areas defined by the Treaty(ies) sources include the Treaty(ies) and Regulations, Directives,
and Decisions - all are binding.
Also note rulings and decisions of the ECJ - where their is
conflict with national law EC law prevails - the courts must
interpret EC law in line with Community objectives – (the
primacy doctrine) - it is ...”part of our law. It is equal to any
statute...” Per Lord Denning in Bulmer v Bollinger [1974]
Constitutional conventions
Conventions are more important in the UK constitution and often
determine the conduct of the political actors e.g. Crown, PM,
ministers, civil servants, judges.
Conventions according to Dicey are:
customary rules which determine how the discretionary powers
of the state were exercised:
‘…the “conventions of the constitution”, consists of maxims or
practices which, though they regulate the ordinary conduct of
the Crown, of ministers, and of other persons under the
constitution, are not in strictness laws at all ’ , in particular,
conventions unlike laws are not enforceable in the courts. Main
role for Dicey is to determine the way the prerogative powers of
the Crown are exercised in practice.
Further definitions of conventions
Sir K Wheare - "By convention is meant a binding rule, a rule of
behaviour accepted as obligatory by those concerned in the working of
the constitution" (Modern Constitutions, p 179). It amounts to a rule of
moral obligation of most use when least needed – permeated by values
such as the rule of law, separation of powers, democracy, accountable
government, etc.
Jennings - Law and the Constitution - "provide the flesh which clothes
the dry bones of the law; they make the legal constitution work; they
keep in touch with the growth of ideas" i.e. (Brazier): (1) enable rigid
legal framework to be kept up to date re changing needs of government
(2) oil formal machinery of government - make government work, in this
sense they have a practical .
Why conventions emerge
Development of unwritten rules often one brought about by
evolution / adaptation - most created after 1688.
E.g., last time PM came from Lords in 1902. But after the
right to vote had been extended to most of the population,
legitimacy crucial.
The Royal assent last refused in 1708 (Queen Anne &
refusal of Scottish militia) - creation Cabinet / PM. The
problem here is to know when a practice has hardened into
a rule.
How to determine whether there is a
convention
Jennings - 3 tests for recognising valid convention: (used in Re
Canada below)
(1) is there a precedent? (vague - political rules not like legal
precedents) How often and how consistently has the practice been
observed before? E.g., PM from majority party;
(2) Do those operating the constitution accept conventions as binding.
Do they feel under an obligation to act - Ministerial responsibility? In
other words conventions depend on consent.
(3) is there a good political reason for the convention? Deference of
House of Lords to Commons (Jennings,pp 136-9).
Also Jennings pointed out that the only real way of knowing if a
convention applied is by the conduct of the constitutional actors.
Conventions and the courts
A-G v Jonathan Cape [1976] QB 752 - Lord Widgery LCJ – a
convention can give rise to an action in equity re the principle of
confidentiality. This was one of the great cases on interpretation of
conventions and legal rules. The Government moved to prevent
publication of the “Crossman Diaries” by obtaining an injunction – This
was on grounds of tort of breach of the equitable doctrine of
confidentiality re Cabinet discussions (collective responsibility) confidentiality recognised, but publication allowed because material in
Diaries 10 years old. Therefore there was no harm to public.
Why are conventions so important?
• Royal assent to legislation is never denied. It recognises the Act
of Settlement limiting the powers of the monarchy.
• If government loses its majority in the House of Commons it will
resign and call an election. Because it can no longer legislate.
• PM and Chancellor of the Exchequer must be members of
House of Commons i.e. answerable to the elected house
• Other ministers must be members of House of Commons/House
of Lords - leading ministers
• Cabinet speak with a single voice i.e. collective responsibility
• After an election leader of largest party will be invited by the
Queen to form a government and become PM. Acknowledgment
of the democratic process. But this assumes a majority in House
of Commons.
Conventions and ministers
Collective cabinet responsibility originated from the need to
give unified advice to the monarch. It requires that all
cabinet members stick with any decision one agreed by the
whole cabinet or otherwise resign. Heseltine resigned after
the Westland Affair in 1985. Useful tool for the PM as it
encourages unity.
Individual ministerial responsibility concerns accountability
of government departments and proposes that it is the
minister who directs the department. It is she and not civil
servants who is ultimately responsible when things go
wrong. But does that mean that ministers are obligated to
resign.
Conventions and the judiciary
Law Lords by convention did not enter into controversial
political debate on general matters or vote on routine
legislation. Now (i.e. from 2009) Supreme Court judges are
given peerages but expressly excluded by statute from
participating as peers in the House of Lords in its legislative
capacity while continuing to work in their judicial capacity.
This convention might be viewed in light of the wider
judicial role. What Lord Bingham termed ‘institutional
competence’ meaning that the judiciary should not trespass
into the territory occupied by the executive in making
decisions over such matters as resource allocation.
Failure to follow conventions
For Dicey because failure to obey will lead to legal difficulties - e.g.
Parliament has to assemble each year because financial resolutions
are essential for the budget to pass. Yet if peers took part in judicial
function of Lords, no legal sanction.
Rather, for Jennings political difficulties if conventions not enforced it is
not legal but a political crisis which will occur.
For example, the Parliament Act 1911 followed the 1909 budget clash
with the House of Lords. The Lords breached the convention re
financial matters prompting the crisis. The effect of the Parliament Act is
to give what was the convention legal force.
Conclusion
(1) UK constitution comprises many different sources, most are
written but not contained in a single document.
(2) Statute law is particularly important and some recent statutes
such as the devolution legislation and the HRA have the
effect of sketching out important aspects of the constitution.
(3) Many crucial areas determined by conventions, some of
which are quite vague.
(4) Little prospect of a codified constitution because of the
difficulty of reaching consensus on what to put in it.
(5) Dicey’s twin doctrines of parliamentary supremacy and the
rule of law assume particular significance as part of the
uncodified constitution. See weeks 3, 4, 5.