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Uk constitution and sources notes
Public Law (Newcastle University)
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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
o 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
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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
o 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
Political constitution Legal constitution
Parliamentary Constitutionalism
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Sovereignty Separation of powers
Fusion of powers Unelected guardians
Elected politicians Tighter rule of law
Ministerial discretion Legal checks and
Political accountability balances Constrained
Unfettered executive executive
Weak judiciary Activist judiciary
Weak HR regime Enforcement of HR
Few external checks Strong constitutional
Based on trust watchdogs
Based on mistrust
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
i. 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
ii. 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:
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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”
o 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
o 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
o 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
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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
i. 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
ii. 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.
iii. 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
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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?
While Jennings test may be useful and applies by the Courts, does it
represent a meaningful binary line?
Unlikely, may be better to treat them as questions of degree, aim
being to locate any given practice on a continuing that speaks to the
extent of its practical and constitutional significance
Elliott: right way to ask the question is how important is the
constitutional value underpinning a practice? If really important:
very strong convention, heavily respected, undistinguishable from
law
o Would be serious consequences to the violation of particularly
important convention
4. Why are conventions obeyed?
Not subject of proceedings in court, breach of convention will not involve
any legal sanction but:
Recognition that conventions should be respected: reflect rules of
government morality
Pol consequences: condemnation by the press and public, bring
violator + pol party into disrepute
Force of habit, inertia, desire to conform – similar to reasons for
obeying law
Convention of ministerial responsibility: ministers are collectively and
individually responsible to Parliament – if a Minister knowingly misleads
Parliament, will be expected to resign from office
5. Distinguishing laws and conventions
i. Theoretical debate
Dicey draws very sharp distinction between laws and conventions:
“The law of the constitution”: rules enforced by the courts
“Conventions of the constitution”: are unenforceable in courts:
no judicial remedies or penalties
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Sir Ivor Jennings in Cabinet Government (1969): enforceability by the
courts is not a valid distinction:
Not all legal provisions confer directly enforceable rights on
ind, referring to Watt v Kesteven County Council (1995): CA had
to decide whether a local education authority was in BoSD because
it had failed to provide education for pupils in accordance with the
wishes of their parents as required by s76 of the Education Act 1944
o Denning LJ held that the duty to make school available could
only be enforced by the minster and s76 did not create a
cause of action entitling an ind to a remedy in the civil courts
Not that different: laws and conventions work in similar ways and
both are obeyed by those to whom they apply – some conventions
may be as fixed as law + stated with as much precision
Munro: defended Dicey’s distinction – not recognised as law by the courts
rather than not recognised at all
Should also look at: source of the rule (conventions unlike laws
does not come from a certain number of sources such as legislation
+ CL) + conventions unlike rules do not form part of a system
(evolve in isolation from each other + no apparatus for secondary
rules like rules for determination)
Rejects Jenning’s argument that laws + conventions rest on general
acquiescence: breaches of legal rules do not bring into questions its
existence or validity whereas binding character of convention is a
necessary condition for existence of convention
ii. Courts will recognise conventions but refuse to enforce
them
Madzimbamuto (1968): PC held that a convention has no legal effect in
limiting the legislative power of Parl
Canadian Supreme Court in Re Resolution to amend the Constitution
(1981) adopted a Diceyan understanding of the law-convention
relationship: court had to decide whether the Canadian Federal
Government was bound by a consti convention to the effect that the
Canadian Federal Parliament will not request an amendment to the
constitutional statutes of Canada directly affecting federal/provincial
relationship without prior consultation and agreement with the provinces
Majority concluded that the alleged constitutional convention did
exist and that it would be unconstitutional for the proposals to go
forward
o However did not enforce the convention: beyond the
constitutional role of the judges
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Drew distinction between: constitutionality of official conduct
and lawfulness of official conduct
o An official conduct can be both unlawful and constitutional
At the same beyond recognised convention, endorsed values and
importance: “while they are not laws, some conventions may be
more important than some laws”
Some support for the view that conventions are taken into account
when interpreting law:
Jonathan Cape (1976): AG sought an injunction restraining the
publication of the diaries of a former Cabinet minister. Question was
whether the Court would issue an injunction and enforce the convention of
joint Cabinet responsibility protecting the confidentiality of Cabinet
proceedings.
Courts recognised the Convention but did not enforce it
Convention was relevant in deciding where the public interest lay:
o Maintenance of doctrine of joint Cabinet responsibility in the
public interest and application of doctrine might be prejudiced
by premature disclosure of views by ind Minsiter
o Here passage of time meant that publication would not
undermine the convention of Cabinet responsibility
insufficient public interest in issuing an injunction
**Suggests that if the facts had been different, if the events had
taken place much more recently, an injunction could have been
issued
Evans v Information Commissioner (2012): Evans appealed against
the decision of the Information Commissioner not to order the disclosure
of letter written by Prince Charles to a number of gov departments
As part of its determination of whether the disclosure would be in
the public interest, Upper Tribunal considered the scope of the
constitutional convention that heir to the throne is entitled to be
confidentially instructed in the business of gov in preparation for rule
o Advocacy correspondence did not fall under “Education
convention”
o Considered the Jenning test to see whether a separate
advocacy convention existed
Finding cleared way for court to conclude that public interest
favoured disclosure: gov accountability and transparency, increased
understanding of interaction between gov and monarchy, etc.
iii. Distinction which turns on the relationship between legal
and pol forms of constitutionalism
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Distinction between law and convention depends on relationship between
legal and pol constitutionalism:
If entirely different matter, no difficulty in bright line distinction
between law and pol practice
If constitution animated by common set of normative value, bright-
line distinction inappropriate
Allan, The Sovereignty of Law (2013) makes little sense in practice to
distinguish consti law from convention
Law extends beyond legal positivism – larger view of law
encompassing general principles developed by CL tradition to
protect ind freedom and rational administration does not justify
distinction
Courts should be endowed with power to enforce compliance with
convention as a way to preserve equality of procedural justice and
hence RoL
Consti conventions = microcosms reflecting how the UK system works:
unwritten, flexible, high level of trust
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