#14971 - Uk Constitution And Sources - Constitutional Law

UK CONSTITUTION AND CONSTITUTION LAW

Abbreviation index

• Consti = Constitutional

• RoL = Rule of Law

• Parl = Parliamentary

• Sov = Sovereignty

Unwritten nature of the UK constitution

Unwritten constitution: no authoritative document that describes, establishes or regulates the structures of the state and the way in which these relate to the people

• Bradley & Ewing (2010): unwritten constitution = body of legal rules, without special legal status, + binding political rules or constitutional conventions, concerning the government of the country

Does not mean that the UK has no constitution:

• The Cabinet Manual (2011): consti order has evolved over time and continues to do so – “consists of various institutions, statutes, judicial decisions, principles and practices … commonly understood as ‘constitutional’”

• Feldman (2005): constitution as machinery through which we give authority to choose between and accommodate conflicts between visions, rather than a set of settled rules

Two key characteristics:

• Flat constitution ( hierarchical): no body of constitutional law occupying a hierarchically distinctive or superior position within the legal order

  • Fundamental rights not legally guaranteed

• Un-entrenched leads to immensely flexible system as constitution can easily be amended

Legal and political constitutionalism

Debate about what makes the exercise of government power legitimate – closely related to idea of public compliance or consent – and accountability – how should those who wield public power be limited and/or held to account?

1. Political constitutionalism

Focuses on political mechanisms of accountability politics and particularly the parliamentary process should create, structure and define the authority of the governing institutions

• Political process as most legitimate means of guarding against unconstitutional behaviour

• Ultimate focus on parliamentarians and the public to whether gov behaving acceptably

  • General elections every four to five years, public enquiries + investigations by parl committee

Griffith: “law is not and cannot be a substitute for politics” – argues for highly positivist view of constitution

• The Politics of the Judiciary (1979): argues that judges because of upper-class background + institutional position in society have a strong ideological bias towards established authority – politicised judiciary cannot act as effective guardians of ind liberty against the State

Tomkins: whether democracy is understood in terms of representativeness of the personnel or openness and accessibility, “Parliament will always enjoy greater democratic legitimacy than courts”

2. Legal constitutionalism

Sees the courts and legally enforceable rights as keys to limit government power

• Gov controls Parliament – principle of parliamentary supremacy too weak to be an effective restraint on gov – provides no guarantee for fundamental rights or the right of minorities

• Counter-majoritarian view of Democracy – governing in the interests of the whole and not just the majority represented in the political process

Laws (1995): Parliament possesses a political sovereignty, a sovereignty which cannot be objected to, save at the price of assaulting democracy itself

• Ultimate sov rests not with those who wield gov power but in the conditions under which they are permitted to do so the Constitution, not the Parliament, is sovereign

• Judicial power, last resort, ensure that this framework is vindicated

3. A false dichotomy?

Loughlin (2006): basis questions is not whether we have a legal or pol constitution: it is how the idea of law within the political constitution (“the constitution of the polity”) might best be conceptualised

SOURCES OF THE CONSTITUTION

Judge-made law

Common law = binding rules formulated and applied by judges in decided cases has made a vital contribution to dev of constitutional law

1. Interpreting constitutional legislation

Judges, in practice, can make constitutional law through their interpretation of such legislation

• Meaning of “possible” in s3(1) HRA 1998

• Meaning of UK statute “shall be construed and have effect subject to” mean in s2(4) ECA 1972

2. Interpreting legislation by reference to constitutional principles

Courts have no power to override an Act of Parliament but have jurisdiction to interpret and apply statutory provisions in accordance with rules and presumptions of statutory interpretation

• L Nicholls in ex parte Spath Holme (2000) on constitutional role of the courts: courts seek to ascertain the intention of Parliament and give effect to it – objective concept based on meaning of words

Through medium of statutory integration, courts will give effect to fundamental constitutional principles:

• L Steyn in ex parte Pierson (1998): assumption by courts that “Parliament does not legislate in a vacuum” but “for a European liberal democracy founded on the principles and traditions of the CL”

  • Assumption only has prima facie force, can be displaced by clear + specific contrary provision

• Ex Parte Witham (1998): broadly worded legislation read down to ensure it did not authorise the making of secondary legislation that would infringe CL-constitutional right of access to courts

Feldman (2014): constitutions are not to be interpreted with mechanical literalness but to “foster, develop and enrich” rather than undermine democratic institutions

• Golden rule: statutes normally to be given their natural meaning unless would have an absurd result

  • Applicable generally to allow courts to produce sensible results but particularly when legislation has consti status – issues likely to be of greater national significance and likely to be more difficult to achieve consensus

Legislation: acts of Parliament

In absence of written consti, key source of UK constitutional law = Acts of Parl dealing with consti law issues

Laws LJ in Thoburn v Sunderland City Council (2003): constitutional statutes = those which condition the legal relationship between the citizen and state in some general, overarching manner; or which enlarge or diminish the scope of fundamental constitutional rights

• Suggested Parl could only expressly repeal constitutional statutes: immune from implied repeal

• Constitutional statutes include: Magna Carta 1927, Bill of Rights 1689, the Union with Scotland Act 1706, the Reform Acts, the HRA 1998, the Scotland Act 1998, and Government of Wales Act 1998

  • European Communities Act 1972: also constitutional statute incorporated into UK law body of substantive Community rights and obligations + gave overriding domestic effect to judicial and admin machinery of Community Law.

Constitutional conventions

Lord Neuberger: UK “has no constitution as such at all, merely constitutional conventions and that it is as a consequence of this that we have parliamentary sovereignty”

1. Defining conventions

AV Dicey (1885): form the “morality” of the Constitution = “body of constitutional or political ethics” operate supplementary to law, crystallising over time, give effect to underlying consti principles

Marshall and Moodie = “non-legal rules regulating the way legal rules shall be applied”

Jaconelli (1999) = social rules of constitutional character which regulate the manner in which governments is to be conducted

Principles that are binding in the political sense but are not directly enforceable by courts

• Form the ‘unwritten rules of the game’ by which all parties have implicitly agreed to abide

2. Examples of constitutional conventions

Mark Elliott: convention as bridging the gap between an archaic legal constitution and a living constitution

1. Royal Assent

Legal rule: every bill which has passed the necessary parl stages must receive the Royal Assent in order to become an Act of Parliament.

Convention: Monarch will grant the Royal Assent to a bill which has either been passed by the HoC and the HoL or has received the assent of the HoC under the Parliament Acts 1911 and 1949

2. Appointment of the Prime Minister

Legal rule: under the Royal Prerogative, Monarch has unlimited power to appoint ministers, including PM

Convention: Gov must have the confidence of a majority in the HoC. Invite the leader of the party of the party with the majority in the HoC.

3. Legislation by UK Parliament that impinged upon devolved competence – Sewel convention

Legal rule: Parliament is supreme, and is entirely free to legislate as it pleases

Sewel Convention: provides that UK Parliament may not legislate for devolved matters without the consent of the devolved legislature affected.

3. Distinguishing between constitutional conventions and habit

Wheare (1953): consti conventions is binding usage as non-binding rule of political practice

Marshall & Mooodie (1971): draw distinction between obligatory and non-obligatory rule true basis of a rule is prescription not description

Convention identified by applying the “Jennings test” developed by Jennings in The Law and the Constitution

• Is there a precedent for the practice?

• Does the relevant actor feel bound to follow the practice?

• Is there a good constitutional reason for the rule and practice?

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