Constitutional Law

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Transcript Constitutional Law

Katarzyna Gromek Broc
University of York
Constitutional Law
Overview of the Course
1. Introduction to the Course, An overview and the Idea of the Constitution:
Introduction to the British Constitution, Sources and Nature
2. The UK’s Historical Framework, Particularity of the British Constitution,
Constitutional Principles
3. Separation of Powers
4. Parliamentary Sovereignty and its limits: EU Membership, Human Rights
Act 1998, Devolution
5. The Rule of Law
6. The Institutions of the UK, Government in the UK, the Crown, Public
Bodies, Judiciary, Recent reform
7. Delegated Powers and Delegated Legislation
8. The Constitution and the Individual: Protecting Rights in the UK, Police
 9. The protection of privacy
 10. Revision lecture
Lecture 1.
 Definition and scope of Constitutional Law
 The starting point of studying Constitutional Law
should be looking at the role of law and government in
society and studying political philosophy in general
 How to reconcile individual freedom with social
 Is the individual merely a tool in hands of state power?
 Constitutional law considers relationship
between the individual and the state seen from
the legal point of view
Definition of scope of
constitutional law
 ‘ It is inherent in the special character of law, as a body
of rules and procedures, that it shall apply logical
criteria with reference to standards of universality and
equity’, Thomspon, Whigs and Hunters
 Constitutional Lawyer would say, Law concerns the
structure and powers of the state
Definition and Scope of
Constitutional Law
 Constitutional Law should express a degree of
consensus about the organs and procedures by which
political decisions are taken
 Constitutional Law should reflect the value that
people attach to human relations, to individual
freedom under the law and to institutions such as
Parliament, political parties, free elections and a free
Definition and scope of
Constitutional Law
 Critics
 Laws seen as a product of human decisions
 Sometimes wrong? Questionable? Reflecting political
 Weaknesses and imperfections of human nature
reasons for law
 Lord Acton
“Power tends to corrupt and absolute power tends to
corrupt absolutely”.
What is Constitutional Law?
 Flexible? More than one definitions?
 Marshall, Constitutional Theory
 ‘Constitutional Law is the part of national law which
governs the system of public administration and the
relationships between the individual and the state’
 The problem of this definition in application to the
 Many rules, principles and practices under which the
UK government operates do not have the force of law.
Definition and scope of
Constitutional Law
 Constitutional Law:
 Problems with definition
 No waterproof definition of constitutional law and
other branches of law ( UK system does not have
comprehensive codes) Human Rights: part of
Constitutional Law, Freedom of Association ( a labour
law theme) part of Constitutional Law, part of criminal
law and procedure could be absorbed by
Constitutional Law
Definition and scope of
Constitutional Law
 Constitutional Law deals with the legal foundations of
the institutional hierarchy through which the state is
 It deals with the composition, powers, procedures and
immunities and relationship between the institutions
of the state
Definition and scope of
Constitutional Law
 There is no clear distinction between Constitutional
and Administrative law
 Maitland defines administrative law as: “The law
which determines the organisation, powers and duties
of administrative authorities”
 It deals with the exercise and control of governmental
 Administrative Law is more concerned with the work
of official agencies in providing services and in
regulating the activities of citizens
UK and the idea of
 Constitutionalism as a evolving doctrine is associated with
the existence of written constitution from which the state’s
authority and legitimacy derives and which may limit the
power of the state in order to protect the rights of
individuals and minorities
 Constitutionalism: “the political authority should be
bound by institutions that restrict the exercise of power”
 In Western Societies’ A written constitution, a democratic
parliament shape a culture of respect for the law by the
state’s organs and the system of courts that may protect
groups and individuals against the abuse of power.
 In the UK there is absence of formal limits: example: the
MP expenses scandal in 2009
What is Constitution?
 Formal sense:
 Constitution consists of laws, rules (conventions) and
other practices that deal with
The institutions of government
The nature, extent and distribution of powers within
those institutions
The forms and procedures through which such powers
should be exercised
The relationship between the institutions of
government and the individual citizen
 Narrow meaning of a constitution:
 A document having a special legal status which sets out the
framework and the principal functions of the organs of
government within the state and provides for principles
and rules by which those organs must operate.
 The meaning of the constitution in the UK
 “ By constitution we mean, whenever we speak with
property and exactness, that assemblage of laws,
institutions and customs, derived from certain fixed
principles of reason, directed to certain fixed objects of
public good, that compose the general system, according to
which the community hath agreed to be governed”
Bolingbrook 1733
The UK Constitution
 UK has a constitution: it has a comprehensive system
of government
In sense
“ the whole system of government of a country, the
collection of rules which establish and regulate or
govern the government”
A system based upon:
Acts of Parliaments
Judicial decisions
Political practices and detailed procedures
Constitution in the UK
 studying a Constitution in the UK is studying various
theories, principles, institutions of which the
Constitution is composed.
 There is no comprehensive attempt to collect and
codify in a single instrument
 However there are some forms of codification
Individual and the State:
 The Constitutional Reform Act 2005,
 The Public Order Act 1994, Terrorism Act 2006
Unwritten Constitution
 Israel and New Zealand
 Why?
 The degree of political continuity
 if it is too rigid in time of political change it leads to
the abandonment and replacement of a pre-existing
constitutional order
 The English Civil Wars led to the creation of the most
significant statutory elements of the postrevolutionary constitutional settlement, the Bill of
Rights 1689 and the Act of Settlement 1700
Gave rise to the principle of parliamentary sovereignty
Since 1830 noticeable moderate and social reforms in
order to ensure uninterrupted economic development
Social and cultural factors:
Stable conditions of the UK unwritten constitutions
Lack of strong historical events
Why unwritten Constitution?
 A considerable level of agreement concerning the role
of government and a reluctance to allow political
groups to interfere with personal relationship
 a willingness to favour graduate development and
moderate change with a dose of suspicion to radical
 Cherishing the political symbols: the monarchy, a
sense of national identity and loyalty
UK Constitution:
 Flexibility:
 The Constitution can be changed in the one of the
following ways
Changed by legislation enacted in normal
parliamentary procedure
By judicial decisions
By change in existing conventional practices
Constitution has no entrenched provisions
( exceptions) special legislative procedure and/or
approval in a referendum
UK Constitution
 Unitary
 Ultimate authority is Westminster Parliament
 Ultimate legal authority is not divided between the
central and regional authorities
 Local government is conducted by county, district and
unitary councils
 Devolution: any legislation outside the prescribed
limits or inconsistent with the Westminster legislation
is invalid
Sources of the UK Constitutional
Formal sources:
A) Legislation
B) Judicial decisions
C) The Law and Custom of Parliament
D) EU Law
E) International Law
Other sources
Constitutional Conventions: they do not have the force
of law but they have a great importance in maintaining
the UK Constitution
Sources of Constitutional Law
 A) Legislation
 In absence of written constitution, the Acts of
Parliament determine the functions of government
 i) Statutes on the structure of UK and Commonwealth
(Acts of Union, Statute of Westminster 1931, European
Community Act 1972)
 ii) Statute on the Monarch power and Royal
Prerogative (Bill of rights 1689, Act of Settlement 1700,
Crown Proceedings Act 1947-Crown could be sued in
contract and tort)
Sources of the UK Constitutional
 A)Legislation
 iii) Statutes on Election, Composition and working of
Parliament (Parliamentary Constituencies Act 1986,
Political Parties, Elections and Referendums Act 2000,
House of Lords Act 1999-removal of hereditary peers)
 iiii) Statutes on Judicial System ( Courts Act 1971created Crown Courts), Constitutional Reform Act
 iiii) Statutes on administrative process (Tribunals
Inquiries acts 1958-92)
Sources of the UK Constitutional
 A) Legislation
 Historically, some statutes have had constitutional
 1) Magna Carta 1215 (King John) later approved by the
English Parliament
 Collection of rights of various classes of the medieval
society respecting their different needs
Magna Carta 1215
 called: ‘fundamental statute’ the most important in the
history of England
Protection from arbitrary punishment : right to fair trial
and reliance on a fair judging system
‘No man should be denied justice’
‘no man should be punished except by the judgment by
peers or the law of the land’
Merchants should not be subjected to unjust taxation
London and other cities could enjoy their liberties and
The Church enjoyed a special position to remain free.
Sources of the UK Constitutional
 A) Legislation: Historical development
 Petition of Right 1628 (enacted by the English
Protest against taxation without consent of Parliament
Protest against arbitrary imprisonment
Bill of Rights and Claim of Right 1688-1689
Restoration of Monarchy in 2 Kingdoms: English and
Scottish Parliaments
Bill of Rights and Claim of Right
 freedom from royal interference with the law (the Sovereign
was forbidden to establish his own courts or to act as a judge
freedom from taxation by royal prerogative, without
agreement by Parliament
freedom to petition the king
freedom to elect members of Parliament without interference
from the Sovereign
the freedom of speech in Parliament, in that proceedings in
Parliament were not to be questioned in the courts or in any
body outside Parliament itself (the basis of modern
parliamentary privilege)
freedom from cruel and unusual punishments, and excessive
freedom from fines and forfeitures without trial
Sources of the UK Constitutional
A) Legislation, Historical development
The Act of Settlement 1700
Succession to the throne
separation of the roles of the Crown, House of Commons
and the Judiciary
 the monarch's powers became conditional on the approval
of Parliament.
 the judges in the higher courts, once appointed, do not
have to be renewed subject to the approval of either
parliament or the Crown.
 The monarch could not sit in the Commons.
Sources of the UK Constitutional
A) Legislation
Other statutes of constitutional importance
Act of Union with Scotland 1707
Parliament Acts 1911 and 1949
European Community Act 1972
Human Right Act 1998
Constitutional Reform Act 2005
Constitutional Acts need to be referred to a committee
of a whole House
 The doctrine of implied repeal does not apply
Sources of the UK Constitutional
 B) Case Law
 Courts against the use of torture A v Home Secretary
Statutory Interpretation
alter the existing rights and privileges of the Crown
Lord advocate v Dumbarton DC [1990]
Give retrospective effect to penal enactments
Waddington v Miah [1974]
interpretation of ex. Human Rights Act
Sources of the UK Constitutional
 C) The law and custom of Parliament
 The Houses of Parliament have power to override their
own procedures
 An example: procedure and setting up different stages
how Bills are passed in Parliament.
 Codes of Conduct for Members of both Houses (each
House has its own code of conduct)
 Parliamentary Standards Act 2009 (expenses scandal)
Sources: Conventions: Rules of
constitutional morality
 D) Constitutional conventions
 Rules which are not Acts of Parliament of fruit of judicial
decisions but observed by the Queen, ministers, members
of Parliament, judges and civil servants
 Dicey
 “conventions, understandings, habits or practices which,
though they may regulate the conduct of the several
members of the sovereign power..... are not in reality laws
at all since they are not enforced by the courts”
Constitutional Conventions
 Dicey’s approach:
 Constitutional Conventions: conventional conduct
 To do something what is customarily expected
 “a generally accepted political practice, usually with a
record of successful applications or precedents”
 “ rules of constitutional behaviour which are
considered to be binding upon those who operate the
Constitution but which are not enforced by the
courts..” Marshall and Moody
Sources of the UK Constitutional
D) Constitutional Conventions
Queen’s speech to open the session of Parliament.
Royal Assent is given by the Queen on the advice of the
 Monarch has unlimited power to appoint whoever to
become her Minister however appointments are made on
the advice of Prime Minister thus by ‘convention’ a new
Minister needs to belong to one or other Hoses of
 ‘conventional rule’ a new government must have the
confidence of the majority in the House of Commons
 Examples
 Conventions regulating the work of Parliament
 The House of Lords should give way to the House of
 Financial measures should be introduced by the
House of commons and not altered by the House of
 In the event of a ‘tied vote’ in the House of Commons,
the Speaker’s casting vote is cast for the government
Sources of the UK Constitutional
 What happens when the conventional rule is
 Loss of office
 Departure from the public life
 Minister is forced to resign