#15519 - The Uk Constitution Responsible Government - GDL Constitutional and Administrative Law

Con & Ad : The UK Constitution & Responsible Government

What is a constitution

• Principles of ‘Constitutionalism’: constitutions exist to ensure citizens are governed in accordance with democratic principles, and that those who govern have legitimacy for their actions. Principles of constitutionalism suggest:

  • (1) the limitation of power: exercise of power within legal limits and must be accountable in law. And that exercise of power must conform to respect for individuals and individual rights.

  • (2) the separation of powers: to avoid excessive concentration/abuse of power.

  • (3) doctrine of responsible and accountable government: gov accountable to the people (electorate), on whose trust power is held.

• Function of constitution: To ensure (1) the allocation of power amongst the various bodies that compose a state; and (2) between the state and its citizens.

• Lord Bolingbrooke; an ‘assemblage of laws, institutions and customs’.

• UK constitution

  • It is an uncodified/unwritten constitution: not codified in one single document (CF, eg USA); a set of arrangements and rules, both written and unwritten, which combine to create a constitutional state.

  • It is a ‘flexible’ constitution: i.e. not ‘entrenched’ (like the USA) --allows amendment through a simple majority in the supreme UK Parliament.

  • it is a ‘supreme’ constitution: legislative powers of the sovereign body (Westminster Parliament) are supreme/unlimited (though EU Law poses a challenge to this).

  • it is a ‘unitary’ constitution: (cf a ‘federal’ constitution, eg German and US Constitution); i.e. most power is centrally controlled in Westminster/Whitehall (though some power devolved to regional bodies, eg councils, Scottish Parliament, N Ireland and Welsh Assemblies – but with supreme power lying in Westminster Parliament);

  • and it lies somewhere between a system of ‘separated’ and ‘fused’ powers: there is separation in the clearly distinct bodies exercising legislative, executive and judicial function; but, there is fusion in the significant overlap between government and Parliament.

  • Gradual/evolutionary development

• Difference from other constitutions (eg USA, Germany):

  • No constitutional court

  • Not codified: dispersed sources

  • Role of conventions (‘fill the gaps’, Jennings)

  • Amendment process: no entrenchment.

Legal sources/rules of constitutional law

(1) Legislation

• Acts of Parliament = primary source of constitutional law in UK. None are formally entrenched—can be repealed with a simple majority.

• ‘Constitutional status’ of some statute (Thoburn, Laws LJ) can only be repealed expressly, no implied repealed, egs:

  • Magna Carta 1215

  • Bill of Rights 1689

  • Act of Settlement 1701

  • Act of Union 1707

  • Parliament Act 1911 & 1949

  • Statute of Westminster 1931 (established independence of Dominions)

  • European Communities Act 1972

  • Police & Crim Evidence Act 1984 (PACE)

  • Scotland Act 1998; Northern Ireland Act 1988; Gov of Wales Act 1998/2006.

  • HRA 1998

  • Constitutional Reform Act 2005

(2) Royal Prerogative [[see ‘Prerogative Power’ topic]]

• Dicey ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’.

• A form of power recognized by the common law. All the privileges and immunities recognized at common law as belonging to the Crown. Courts determine its ambit and existence.

• Egs: prerogative of mercy; prerogative relating to signing of treaties and declaration of war.

(3) Judicial precedent/common law

• Egs:

• Entick v Carrington (1765): need for legal authority to justify government action when interfering with individual right. Watershed in establishing a tradition of civil liberties in English law.

• GCHQ (1985): prerogative power is subject to review by the courts.

• Factortame (No 2) (1990): acceptance of supremacy of EU law.

• A & Others (Belmarsh) (2004): re indefinite detention of foreign prisoners, incompatible with ECHR (Art 14)—> issued Declaration of Incompatibility under HRA 1998.

(4) EU law

• ECA 1972

• Primary legislation: treaties (EC Treaty 1957, TEU 1994).

• Secondary legislation:

  • regulations (directly applicable, binding in entirety);

  • directives (binding as to result to be achieved);

  • decisions (addressed to specific parties)

• ECJ case law are binding—eg Factortame 2

Non-Legal sources of UK constitution

(1) Constitutional conventions

• Dicey, conventions = descriptive rules of behaviour: ‘conventions, understandings, habits of practices which though they may regulate the conduct of officials are not in reality laws at all since they are not enforced by the courts.’

• Sir Ivor Jennings (and Munro and Marshall) conventions as binding rules, different perspective to Dicey: conventions as actual binding rules of behavior, albeit not legally enforceable. Similar view taken by Marshall and Moodie in Constitutional Conventions: ‘binding by and upon those who operate the constitution, but which are not enforced by the law courts’.

• Cabinet Manual, conventions = ‘rules of constitutional practice that are regarded as binding in operation but not in law’.

• Nature of Conventions:

  • (1) informal rules of political practice.

  • (2) usually develop in an evolutionary way.

  • (3) unlike rules of law, do not have a clear source in legislation or case law.

• Sir Ivor Jennings (1959, Law and the Constitution), three stage test of identifying a constitution.

  • (1) What are the precedents?

  • (2) Do the actors believe they are bound by a rule?

  • (3) Is there a (constitutional) reason for the rule?

• Sir Ivor Jennings: ‘they provide the flesh which clothes the dry bones of the law’

• Reference Re Amendment to the Constitution of Canada (1981), Canadian Supreme Court:

  • Re convention that Canadian federal gov would not send a bill to Westminster altering the balance of federal/provisional gov power without the support of the Canadian provinces.

  • Ruling: Conventions are not laws, not legally binding

  • BUT conventions give strong political obligations: to ignore such a convention could be said to be ‘unconstitutional’ although not strictly unlawful.

  • ‘The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period’.

  • ‘The conventional rules of the constitution present one striking peculiarity. In contradiction to the laws of the constitution, they are not enforced by the courts ... .unlike common law rules, conventions are not judge-made rules.

  • The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country’.

• Egs of conventions: Cabinet Manual refers to some

  • Conventions relating to the Legislature

  • Salisbury Convention: HL should defer to HC, particular re a bill promoting an election manifesto commitment.

  • Financial bills only introduced in HC by a cabinet minister.

  • All parliamentary committees should reflect party strength in HC.

  • MPs have access to the Crown through the Speaker.

  • Sewel Convention –put in Scotland Act 2016

  • Arguably, new convention re HC vote for going to war—Syria, 2013.

  • Ponsonby Convention: lay international treaties before Parliament 21 days before ratification (now in Constitutional Reform & Governance Act 2010).

  • Re executive

  • Monarchs acts in accordance with advice from ministers

  • Monarch doesn’t refuse to give ‘Royal Assent’ to bills

  • Office of PM is a creature of convention—monarch should appoint leader of party able to command confidence of HC.

  • PM chooses Cabinet

  • PM and Chancellor must be members of HC.

  • Collective & individual ministerial responsibility

  • After vote of no confidence, Gov should resign

  • Monarch must be asked for Royal Consent before bills affecting the personal interests of monarch are introduced to Parliament.

  • Re judiciary

  • Judges not political active

  • Judge’s professional conduct shouldn’t be criticized in Parliament (except on a motion of dismissal)

  • Re Commonwealth

  • The Governor-General of a Commonwealth country should not be appointed by Queen unless advice has been taken from the country concerned.

  • UK Parliament should not legislative for an independent Commonwealth nation unless that state has requested and consented to it (note Statute of Westminster, 1931, s4).

• Purpose/flexibility/rationale of conventions:

  • ‘Fill the gaps’ in UK constitution (Jennings)

  • They provide flexibility & fluidity, means of developing the constitution informally.

  • They provide one means to regulate the relationship between Ministers within central gov; and the relationship between different branches of government

  • They define and modify powers, regulate authority of the Crown, and underpin the operation of the Cabinet system.

  • They regulate internal relations between House of L and C.

  • Regulate relations between UK and Commonwealth.

  • Help to control and provide accountability of the Executive (see Ministerial Responsibility).

  • Jennings/Marshall/Munro arguments: conventions are prescriptive and impose an obligation that they should be followed.

• Courts will recognise conventions but won’t legally enforce them

  • Reference re Amendment to the Constitution of Canada (1982), see above

  • AG v Jonathan Cape (1976): re collective ministerial responsibility; where an enforceable legal right governs same area as the convention; AG tried to get injunction blocking publication of Crossman diaries; claimed it broke collective ministerial responsibility; HELD: recognised convention of collective ministerial responsibility; but, not legally enforceable by the courts, no remedy available.

  • NB: AG won...