#3579 - Constitutions And Constitutional Conventions - Constitutional Law

What is a constitution?

• Set of rules that prescribe the structure and functions of a government in a specified territory. They are used to:

  • Lay down institutional forms through which power is exercise

  • Allocate power (horizontally across branches and vertical through local government through to EU)

  • Impose constraints on government and establish where power starts and ends

  • Give legitimacy to a government, particularly considering the power they exercise over us.

  • Anticipate events and make provisions for the protocol in those events.

The British Constitution:

• It is written. But it is not codified in a single document.

• Theoretically there is no such thing as ‘constitutional legislation’ and nothing is on a higher footing than anything else (although this is questionable in light of decisions in cases like Thoburn).

• The constitution is given legitimacy by public consensus and acceptance. As far as procedural legitimacy is concerned, we rest on our laurels, especially when compared to countries like the US.

• Feldman sees the constitution as ‘the machinery through which we give authority to, choose between, and accommodate conflicts between visions [of the constitution], rather than a set of settled rules’.

Advantages:

• Incredibly flexible. Parliament can alter the constitution with great ease (allegedly), whereas it is near impossible in countries like the US.

• Being placed throughout legislation means it cannot be ‘suspended with the stroke of a pen’, like a single document.

• Parliamentary sovereignty approach is more democratic than giving strike-down power to unelected judiciary. Keeps the judiciary non-partisan.

• Upholds the principle of parliamentary sovereignty.

• Promotes the concept of a constitution as a living document that can evolve over time.

Disadvantages:

• Too flexible. Parliament can make and unmake any law. So there is no such thing as a constitutional right. Human rights are not sufficiently protected (threat to get rid of HRA).

• Unclear – what exactly are the ‘founding principles’ of the country? And what are our rights?

• No clear protection of the rule of law. The law is not necessarily certain.

• Separation of powers is unclear – ‘dividing lines’ are blurred (especially before the founding of the SC).

Should we codify? (Bogdanor and Vogenauer)

• Some argue that we have been shifting towards codification since 1997 (if we accept ‘constitutional’ statutes).

• Would want to include constitutional principles like rule of law, sovereignty etc. But these are in tension with each other – difficult. Would probably require Parliament accepting it is no longer sovereign.

Sources of the constitution:

• Statute – backed by the doctrine of Parliamentary sovereignty. Recently it has been questioned whether there is a hierarchy of Acts of Parliament (Thorburn)

• Common law – judges set precedent which can affect the constitution. Note, however, that Acts of Parliament can override a decision.

• EU Law – given effect by ECA 1972.

• ECHR – provides rides. Given effect by HRA 1998.

• International obligations – created by treatises etc.

• Royal prerogative – previously exercised by the monarch but now vested in HM’s ministers – include declaring war, making pardons etc.

Conventions

• Non-legal, generally agreed upon rules about how the government should be operated. Applies especially to how different organs of government interact with each other. They create a sense of obligation upon a constitutional actor.

  • They are distinct and wield more power than ‘mere tradition’.

• Conventions are so important in the UK because of the way our constitution has slowly evolved – we are a very old country.

• Some important conventions:

  • The Queen does not exercise royal prerogative without the advice of her ministers.

  • The Queen will invite the leader of a party who receives a majority in a general election to form a government.

  • The Queen should give royal assent to bills passed by Parliament

  • Ministers are accountable to Parliament and must not knowingly mislead them.

  • House of Lords will allow everything in a party’s manifesto to pass through Parliament without over-hindrance (Salisbury convention).

  • Westminster will not legislate in areas devolved to Scottish Parliament and assemblies (Sewell convention)

Theories on conventions:

• Dicey suggested that conventions should not be defined, but rather illustrated by example and negatively defined by the fact they were not court enforced.

• Jennings tries to offer a test for a convention:

  • What are the precedents?

  • Did the actor feel bound by those precedents?

  • Is there a reason for the rule?

• Barber – there is a spectrum of social rules, at which laws lie at the most formalised end. The existence of a convention may be used in the assessment of whether an actor was acting reasonably, but it will not be conclusive proof of unlawful behaviour. Conventions can be codified, which moves them...