Constitutional Conventions And Fundamental Statutes

Front 1

While the commonlaw stands apart and separate from legislation — and indeed is autonomouslyrooted in the judicial process — fundamental statutes are, on the surface, indistinguishablefrom any other “ ordinary ” statute passed by Parliament.

Nevertheless, they have attained an iconic status, representing deeper constitutionalprinciples

Back 1

Conventions, on the other hand, are not even rules of law, strictly speaking. Still, their constitutional importance in the United Kingdom is immense, as they typically regulate how democratic decision making actually takes place in a political system lacking a formal, written constitution. The normative quality of conventions accordingly ensconces them, along with fundamental statutes and common law rights, in a constitutional jurisprudence that supports judicial declarations against Parliament’s unconstitutional acts. Many conventions indirectly protect rights in the U.K. by systemically regulating political and legal processes, ensuring that government power rests on democratic foundations. For example, the Crown will not refuse royal assent to a bill passed by Parliament, and ministers must be accountable to Parliament.

Front 2

Nevertheless, conventions are not legal rules, strictly speaking, and so remain unenforceable in the courts. However, as with common law rights, “ unenforceable ” does not mean judicially “ unrecognizable ” or “ without legal effect. ” Legal rules and conventions together form the whole of the British Constitution; a breach of convention, while not a breach of law, is still a breach of the Constitution — a crucial distinction in British public law that might seem contradictory to foreign observers accustomed to written constitutional rules synonymous with legality.

Back 2

Conventions, therefore, create democratically focused expectations forpolitical actors, jurists, as well as all other citizens, while they also factor intothe process by which courts interpret primary legislation. This role in statutoryconstruction gives them an indirect legal effect.

Front 3

Attorney General v. Jonathan Cape Ltd. , the English High Court found that the convention of joint cabinet responsibility informed the understanding of the law of confidentiality. The court gave legal effect to the convention and related its politically systemic function back to common law doctrines of private rights and obligations. Accordingly, the court restrained the publication of a minister’s writings that would breach the confidence owed by the minister to the Queen in the conduct of governmental business.

Back 3

As an interpretational aid, apparent in Jonathan Cape , a convention can have legal effect (despite not being a legal rule, strictly speaking) by shaping statutory meaning much as common law rights can have just such effects. Judicial construction of a statute in light of a convention, therefore, involves the same interpretive process that applies to common law rights. Conventions are part and parcel of a constitutional jurisprudence through which courts will hold government to the rule of law, with or without the HRA.

Front 4

Like conventions, fundamental statutes protect rights independentlyof the ECHR, supporting a declaration of unconstitutionality upontheir violation. Moreover, the HRA itself has quickly acquired constitutionalstatus, so that significant legislative alteration of it would quite likely be unconstitutionalon its own accord. The constitutional significance of documents like the Magna Carta, the Billof Rights 1689, the Act of Settlement 1701, the Acts of Union, and the Great Reform Bill of 1832 is well established.

The Parliament Acts of 1911 and 1949,the House of Lords Act 1999, and the Constitutional Reform Act 2005 have altered the institutions of government -->include the European Communities Act1972, the acts of devolution to Scotland and Wales, and, of course, the HRA.

Whether statute, treaty, or in some other form, these documents have allaffected the constitution on a normative level, progressively adding to andadjusting its baselines. Many of these statutes systemically protect rights bybuttressing democratic governance through institutional design and regionalism.Despite not having the same status as entrenched written constitutional provisions,fundamental statutes nevertheless have privileged status over ordinarylaws in that courts will interpret primary legislation compatibly with themwhenever possible. Fundamental statutes, along with common law rights and conventions, construct the constitutional framework within which both Parliament and the Crown exercise power.

Back 4

Thoburn v. Sunderland City Council8 shows how courts can review “ ordinary ” statutes against the criteria provided by fundamental ones, particularly where individual rights are in issue.

In Thoburn , the so-called Metric Martyrs case, the appellants were greengrocers convicted of violating executive regulations prohibiting the use of imperial measuring units in trade, except as supplemental to metric units. The regulations in question implemented European Community directives and amended, by order, the Weights and Measures Act 1985 under section 2 of the European Communities Act 1972. The appellants argued that the regulations under which they were convicted were unlawful, as the 1985 statute as originally enacted permitted the use of imperial measures and so by implication repealed section 2 of the European Communities Act insofar as that act might permit the executive to make regulations inconsistent with the 1985 law.

The court rejected the appellants ’ argument of implied repeal. Citing his decision in Witham as authority, Justice Laws distinguished “ ordinary ” from “ constitutional ” laws, where the latter, especially, conditions the legal relationship between citizen and state, enlarging or diminishing fundamental rights. Parliament’s amendment or repeal of a constitutional statute, therefore, could not be implied, he found, but must be express or arise from specific words leading to an irresistible inference --> applied to the European Communities Act.

Front 5

This interpretive process reconciles the rule of law with parliamentary sovereignty, while a declaration of unconstitutionality would openly acknowledge that, in the view of a court, a conflict had arisen between them. Under the reasoning of Thoburn , outright amendment or repeal of the Human Rights Act itself, for example, would require that Parliament unambiguously do so in order to restrict or “ dis-incorporate ” convention rights. Even in that event, the Magna Carta, Bill of Rights 1689, and Great Reform Bill constitutionally establish basic rights principles such as habeas corpus, a right to petition, and a right to vote. Through their normative force, the principles enshrined in these special statutes have a value beyond their explicit text, elevating them above ordinary statutes and setting them in a substantive rule-of-law framework that restrains government power independently of screwing them.

Some fundamental statutes go beyond particular rights in order to define the government’s institutional structures and regulate democratic decision-making processes. The Parliament Acts, the Act of Settlement, and the Constitutional Reform Act 2005 do just this, while the Acts of Union and the devolution acts respect the values of regionalism. While not directly affecting individual rights, these structurally significant statutes do so indirectly by establishing the institutional mechanisms or regional levels through which Parliament and the government must act. Institutional mechanisms prevent institutional or personal concentrations of power, which might permit decision makers to interfere arbitrarily, oppressively, or undemocratically with individual rights. Regionalism mitigates the overcentralization of government power for the same ends, by promoting some degree of regional equality, identity, or decision-making autonomy for the U.K. ’ s constituent national communities.

Back 5

The decision in Jackson v. Attorney General not only illustrated the importance that fundamental statutes have but went so far as to suggest, in dicta, that, conceivably, they could legally limit parliamentary power under some circumstances. In Jackson , the appellants argued that the Hunting Act 2004, passed under the procedures of the Parliament Act 1949, was not actually an act of Parliament because the 1949 act itself was not legally valid. The appellants argued that the government of the day had secured passage of the Parliament Act 1949 improperly through the procedures of the Parliament Act 1911, which, correctly construed, did not permit the House of Commons to reduce further the legislative power of the House of Lords without that chamber’s consent.

The Lords disagreed with the appellants ’ argument and declared both the 1949 Act and the Hunting Act to be valid acts of Parliament, finding that the Parliament Act 1911 changed the definition of primary legislation and so gave power to the House of Commons to pass any statute whatsoever under its procedures without the consent of the Lords. Section 2(1) of the 1911 Act, however, expressly made one notable exception on the use of its procedures, excluding from these any bill extending the life of Parliament beyond five years. Although unnecessary for deciding the case before them, some Lords of Appeal speculated on the hypothetical issue of whether or not the House of Commons could use the Parliament Act 1949 to amend section 2(1) of the 1911 Act, so as to permit the Commons to extend the life of Parliament beyond five years without the consent of the House of Lords. Lord Bingham expressed an opinion that the House of Commons, in this way, could indirectly achieve what it could not directly legislate under the unamended 1911 Act.

Lord Nicholls disagreed, however, arguing that section 2(1) necessarily implied that the House of Commons could not indirectly extend the life of Parliament by first amending section 2(1), 90 leading to a conclusion that any bill purporting to do so by this two-step procedure could not be an act of Parliament and would, therefore, be legally invalid. Most interesting, however, was the decision of Lord Steyn. He agreed with Lord Bingham that the House of Commons could use the procedures of the two Parliament acts to amend section 2(1) of the 1911 Act so as to permit the Commons to extend the life of Parliament without consent of the House of Lords. However, he explored the constitutional implications of such unicameral authority in the House of Commons. Under this interpretation of section 2(1), “ the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. ”Although the supremacy of Parliament remained the “general principle ” of the constitution, it was not absolute. Lord Steyn mused: “ In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a New Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. ”

Front 6

Issues with the ideas of "constitutional statutes" --> brought up in Thoburn and endorsed in HS2 --> they are hella limited --> can be repealed like any other statute through the enactment of regular legislation --> no need for some extra-legislative constitutional-amendment process or even a legislative super-majority -->Rather, constitutional statutes can be repealed through the enactment of ordinary legislation, subject only to the proviso that any inconsistency between a constitutional statute and a later ordinary statute will be resolved in favour of the former unless the latter uses express - or, as Laws LJ put it, ‘specific’ - words of repeal. Constitutional statutes are thus immune from the normally applicable doctrine of implied repeal, -->the modesty of the consequences that attend treating a statute as constitutional may suggest that the distinction embraced in HS2 between constitutional and ordinary legislation is trivial. However, such an interpretation would be wide of the mark, not least because the shift away from the Diceyan dogma that all legislation is equal is significant in itself, notwithstanding that the degree of practical superiority ascribed to constitutional statutes is presently limited.

Back 6

Whereas Factortame was concerned with the relationship between a constitutional statute (the ECA) and a subsequent ordinary statute, HS2 was concerned with the relationship between a constitutional statute (the ECA again) and an earlier constitutional statute. Did the constitutional status of the European Communities Act 1972 mean that it - and therefore EU law given effect by it - could take priority over the Bill of Rights 1689?

Front 7

MArk Elliot on conventions

As regional autonomy and human rights become increasingly embedded within the British constitutional order, so it is to be expected that conventions will emerge concerning the acceptable limits of legislative action by the Westminster Parliament. I

Back 7

In this way, convention comes to bridge the gap between a constitutional theory of unlimited legislative authority, and the reality of a political environment within which regional autonomy and fundamental rights are regarded as tracing the perimeter of acceptable legislative conduct

Front 8

In general terms, as Marshall notes, ‘the most obvious and undisputed convention of the British constitutional system is that Parliament does not use its unlimited sovereign power in an oppressive or tyrannical way. That is a vague but clearly accepted conventional rule resting on the principle of constitutionalism and the rule of law’.

Back 8

British North America Act 1867 and s 2 of the Statute of Westminster 1931, which transferred a broad legislative competence to the Canadian institutions, s 7 excluded the competence to alter the Canadian constitution. Furthermore, although the British North America (No 2) Act 1949 did transfer to the Federal Parliament an extended power of constitutional amendment in relation to the matters assigned to it under the 1867 distribution of powers, this excluded the authority to change the distribution of powers between the provincial and federal governments. The legal competence to effect such a change therefore remained at Westminster. Analysed in terms of sovereignty theory, the Westminster Parliament was, after 1949, fully competent unilaterally to enact legislation altering Canada’s federal arrangements. However, the real situation was very different. It was accepted by Canada and the UK that Westminster would enact legislation relating to the Canadian constitution only if Canada requested the enactment of such legislation. This practice was regarded as a constitutional convention and, indeed, was recorded in the preamble to the Statute of Westminster. This is an excellent illustration of how convention can form an interface between theoretical legislative freedom and political reality. Thus, in the Canadian case, the convention (to an extent) was able to institutionalise political reality by constraining the manner in which legislative power was, in practice, deployed.

Front 9

Some writers view conventions in purely empirical terms. Hood Phillips, for instance, regards them as ‘rules of political practice which are regarded as binding by those to whom they apply, but which are not laws’.*’ Others, however, recognise that they reflect both empirical and normative considerations - thus helping to explain why conventions are both descriptive of past practice and prescriptive of future conduct. These dual (and interrelated) aspects of convention find clear expression in the so-called Jennings Test, which requires not only that the practice is supported by precedent and that political actors feel bound to respect it, but also that there must be a reason for the practice.-->Sir Ivor Jennings The Law and the Constitution

Back 9

Jaconelli argues that Jennings’s approach is ‘lacking in precision’, pointing out that Jennings offers no guidance as to what constitutes a good reason for a given Jaconelli prefers to analyse conventions in terms of ‘social rules’. He draws upon Hart’s distinction between ‘habits’ and ‘rules’, placing constitutional conventions in the latter category: a convention ‘is no mere habit . . . It is a rule . . . which looks on the outward pattern of behaviour as a standard to be followed. Any deviation from the practice attracts - and is rightly regarded as attracting - criticism and pressure to conform’. Thus, although Jaconelli regards Jennings’s approach as a ‘crude amalgam of precedents and reasons’, the reason underpinning the practice must still be of relevance within the social rule model, since the more compelling the underlying principle, the greater will be the social pressure to conform to the practice. In the present context, the ‘practice’ in question is legislative adherence to the principles of human rights and devolution; and it is submitted that there exists a compelling rationale for such adherence which (on Jennings’s approach) supplies the ‘reason’ to support a convention, or which (applying Jaconelli’s model) explains why pressure exists in favour of conforming to the practice. The position