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54 Cards in this Set
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What was Thomas Paine's (political theorist) view of the relationship between government and constitution? |
The constitution was the method by which the government derived its legitimate power ‘A constitution is not the act of a government,but of a people constituting a government, a government without a constitutionis power without right…a constitution is a thing antecedent to a government;and a government is only a creature of a constitution’ |
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What are the key idea behind a constitution? |
- constitution as ‘codes of norms which aspire to regulate theallocation of powers, functions, and duties among the various agencies andofficers of government, and to define the relationship between these and thepublic’ – Finer, Bagdanor and Rudden - set of rules defining how country is governed, define institutions of state/powers/relationships by allocating powers between national institutions and central and regional governments - define citizen rights, their protection and promotion, and in doing so restrict government power |
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M v Home Office Facts: M sought asylum, but application & judicial review rejected. He was notified of return, but issued proceedings for review. Judge said removal should be delayed, accepted undertaking from counsel to the Crown that he wouldn't be removed. He was removed in breach. The judge ordered his return. R said the court had no power in contempt against the crown. Held: Crown and ministers of the Crown, are not immune to contempt proceedings for breach of an injunction. |
Lord Templeman: "Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law...Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the law against the Crown as monarch ...but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown" Constitutions allocate power to legislative, executive & judiciary |
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What factors will shape the substantive content of a constitution, its form and whether or not it is entrenched? |
Constitutions vary considerably depending on political traditions, historical origins and goals, and complexity of the established structure. Also entrenchment will depend on attitude toward fixed laws |
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What is unique about the UK constitutional plane? |
The UK has a unique background, with parliamentary sovereignty gradually being achieved over a traditionally sovereign 'Crown'. Shaped by political and societal event
Has laws relating to constitutional matters, not written into a single document (non-codified) i.e. ordinary legal provisions with constitutional significance |
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How are constitutions amended? |
Many include provision for own amendment: - US:amendments proposed by 2/3rds of both Houses ofCongress need ratification from 3/4s of the legislatures of states. High levelof assent explains relatively few changes in constitution over 200 years - Germany – some features entrenched,including federalism. Aside from this, constitution changed by OLP save as regards matters affecting state May establish fundamental rights & democratic principles |
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What are the domestic sources of constitutional law in the UK? |
LEGAL SOURCES - Statutes/Acts of Parliament
- Secondary Legislation - Prerogative/Royal Prerogative - Common Law NON LEGAL SOURCES - Constitutional Conventions |
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What are the international sources of constitutional law in the UK? |
Dualist system of UK means: - European Community Law effected by European Communities Act 1972 - European Convention on Human Rights effected by Human Rights Act 1998 International law (not Treaties) can be applied by courts domestically if fundamental, 'jus cogens' |
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Legislation said to have constitutional character/content? |
1. Magna Carta 1215 - established formal equality 2. Bill of Rights 1689 - rights and liberties of the subject and settling the succession of the Crown. Sets out powers of Parliament & Crown 3. Act of Settlement 1701 - further limited Crown, secured rights/liberty 4. Local Government Acts 1972/2006, Government of Wales Act 1998, Scotland Act 1998, Constitutional Reform Act 2005. Sec discrimination Act 1975, Race Relations Act 1976... (legal rights) |
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20th Century Constitutional Landmarks |
1.Parliament Act 1911 and 1949 - empowered House of Lords/Commons. limited the duration of Parliament 2. Representation of the People Acts 1918, 1928, 1948, 1969 - suffrage 3. The European Communities Act 1972 |
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What is secondary legislation? |
Made up of Orders in Council and Statutory Instruments, authorized by primary legislation and allows ministers to make law with little parliamentary oversight |
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What is the Royal Prerogative? |
Ancient rules remaining from era of absolute monarchy. Not statute - Monarch's Personal Prerogatives: monarch generally perform in person Grant of royal assent to legislation passed by Parliament Appointment of Prime Minister - Government Exercised Prerogatives: exercised in name of crown Foreign policy (Treaties, recognizing other states and governments, ambassadors, declaring war/peace, RAF, passport issuing & withdrawal) Domestic policy (appointing/dismissing ministers, pardoning offenders, granting charters, controlling domestically disposed armed forced) |
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How does Dicey describe the royal prerogative? |
‘…the residue of discretionary or arbitraryauthority, which at any time is legally left in the hands of the Crown…everyAct which the executive government can lawfully do without the authority of anAct of Parliament is done in virtue of this prerogative’ |
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British Broadcasting Corporation v Johns Facts: BBC claimed tax exemption, as emanation of Crown, & amenability to jud review. Council claimed right to grant monopoly of broadcasting Held: Not statutory creation exercising statutory functions, or in any way subject to statutory guidance. Does not exercise governmental function, thus can be no judicial review. Monopoly taken over by Statute of Monopolies 1623. Executive government has no constitutional right to exercise through agents/confer on them a monopoly |
LJ Diplock: ‘350 years and acivil war too late for the Queen’s courts to broaden the prerogative. Thelimits within which the executive government may impose obligations orrestraints upon citizens of the UK without any statutory authorityare now well settled and incapable of extension.' |
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What are some of the constitutional legal rules based in the common law? |
- Resolutions in the House of Commons not the same normative status as Acts of Parliament endorsed by Commons/Lords/Crown, Stockdale - Exercise of executive power must be authorized by pre-existing legal authority, Entick - Constitutional conventions are not enforceable in courts, Madzimbamuto - Aided development of JR of executive action, Parliamentary Sovereignty |
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Stockdale v Hansard Facts: D, following the publishing of a book, was alleged to have be libellous in doing so. D claimed that the relevant statute was not valid Held: To valid, a statute must be passed by both houses of Parliament and receive royal assent. This was changed with the Parliament Act 1911 |
Lord Denman CJ: ‘respect and gratitude to theConvention Parliament ought not to blind us to ...[sentences] unjust & tyrannical as any of those of arbitrary power for which they deprived King James of his Crown.’ ‘Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment;... It is contended that they can bring it within their jurisdiction by declaring it so..it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.’ |
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Entick v Carrington Facts: King's Messenger entered P's house and seized papers under warrant issued by SS, government minister Held: The common law does not recognise interests ofstate as a justification for allowing what would otherwise be an unlawfulsearch |
Lord Camden : ‘If it is law, it will be found in our books. Ifit is not to be found there, it is not law.’ |
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Madzimbamuto v Ladner Burke Facts: Privy Council had to decide whether Parliament could lawfully legislate for Southern Rhodesia after that country had declared its independence. Government of Southern Rhodesia contended that there was a convention which required their consent before any UK legislation could apply to Southern Rhodesia Held: convention has no legal effect in limiting legislative power of Parliament |
Reid LJ: may be "unconstitutional for the UK Parliament to do certain things, meaning that the moral, political & other reasons against doing them are so strong that most people would regard it as highly improper ...does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do any of them, the court could not hold the Act ...invalid." Courts willing to acknowledge conventions, which may indirectly give rise to legal obligations. Can support arguments, not contradict laws |
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In what way does the common law contribute to the constitution through interpretation? |
Common law: source of interpretative principles, and courts apply 'constitutional assumptions' when interpreting/applying statutes - Indicated Parliament ma not restrict fundamental rights implicitly - HRA has allowed courts to construe legislation 'so far as is possible' in Convention compatible way |
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What is meant by the term political constitution? |
- Considerable portions of the constitution are governed by political rather than legal rules - Even where rules have been legalized they remain subject to reform on the basis of the will of a parliamentary majority- Jennings: UK constitution 'political' in nature, 'changing from day to day' - 'law is not and cannot be a substitute for politics' Unattainable ideal to have society governed only by laws, even with written constitutions, 'merely pass political decisions out of hands of politicians and into hands of judges'. 'constitution is no less & no more than what happens' Griffith |
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What are constitutional conventions? |
- "non-legal rules regulating...legal rules" Marshall & Moodie NOT LAWS - Considered unsuitable for litigation for fear of politicizing the judiciary - "provide the flesh which clothe the dry bones of law" - Jennings - "regulate the conduct of several members of the sovereign power... are not in reality laws at all" -Dicey - Ex: Individual Ministerial Responsibility, Salisbury Convention, Sewell Convention, govts shouldn't spend public money on communication with party-political purpose, advice of law officers confidential - should have normative value, give sense of binding NOT HABITS |
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In what ways do conventions regulate the conduct of civil servants and the relationship between Government and Parliament? |
- Minister responsible & accountable toparliament for the conduct, policy and administration of their departments,they must not knowingly mislead Parliament - Members of the Government must abide bycollective responsibility; if they wish to publicly diverge from governmentpolicy they should resign (relaxation during periods of Coalition government) - Government should seek the consent of Parliamentbefore committing the armed forces to combat, save in urgent cases – being moreprominent following Syria vote |
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In what ways do Conventions regulate actions of the Crown? |
- Royal prerogative relating to foreign affairs areto be exercised on the advice of Ministers (in reality, are exercised by ministers) - When selecting a PM, Queen must choose the partyleader best able to command a working majority/ confidence of the House ofCommons · - Queen’s other prerogatives (other than personalprerogatives) should be exercised on the advice of ministers, or the relevantminister - Queen should give royal assent to Billproperly passed in Parliament - Queen’s power to appoint and dismiss Ministersis to be exercised on the advice of the PM (in effect, exercised by PM) |
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In what ways do Conventions control the appointment of PM? |
- Role of the Monarch to appoint a PM - Legally can be whoever they choose, by convention must be someone who commands the confidence of a majority in the House of Commons - Precedent suggests the PM must be member of House of Parliament - Since 1963 has become recognised convention that a PM should come from the House of Commons, in order to be accountable to the House - Exception that a PM can hold office temporarily whilst not a MP during a General Election |
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What are the issues associated with constitutional conventions? |
- lead to 'gray areas' and uncertainty (Marshall comments that most British conventions are 'somewhat slippery and vague' and recommends formalizing them) - can conventions be created/declared/binding? Most created organically, evolve as political procedure or result of specific events (Statute of Westminster 1931) |
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What conventions are laid out under sections 2 and 13 of the Memorandumof Understanding between the United Kingdom Government of Scottish ministers,the Cabinet of the National Assembly for Wales and the Northern IrelandExecutive Committee (2001)? |
2. The Memorandum is a statement of political intent, andshould not be interpreted as a binding agreement. It does not create legalobligations between the parties. It is intended to be binding in honor only… 13. The UK Parliament retains authority to legislate on any issue,whether devolved or not. It is ultimately for Parliament to decide what use tomake of that power...UK Government will proceed in accordance withthe convention that the UK Parliament would not normally legislate with regardto devolved matters except with the agreement of the devolved legislature. |
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What is the purpose of constitutional conventions? |
- Foundational Purpose: set down important foundational rules, ex: PM member of HoC - Ensure Democratic Accountability: regulate how constitutional actors should act/interact Conventions ‘ensure that the legal frameworkof the Constitution will be operated in accordance with the prevailingconstitutional values of principles of the period’ Canadian SC |
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What is the Ministerial Code? |
A document setting out "rules" and standards for government ministers in the United Kingdom. Codifies convention of Individual Ministerial Responsibility to Parliament Separate codes exist for ministers of the Scottish Government, the Northern Ireland Executive (based on theSt Andrews Agreement) and the Welsh Government. |
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What is the 3 fold test Jennings proposed to identify conventions? |
1 What are the precedents? 2 Did actors believe they were bound by rule? 3 Is there a constitutional reason for the rule? - Decide if convention came to existence/refused to operate - Endorsed in Canadian case Re: Amendment of the Constitution - Munro: inadequate, lack of clarity over who decides sufficient constitutional reason, ignores conventions based on agreements - Jennings noted that some laws were similarly not enforced |
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Re: Amendment of the Constitution of Canada Facts: Govt proposed constitutional changes, written Canadian constitution did not require consent of provinces, however conventional that provinces agreement should be obtained before changes were made to constitution Held: As a result, Canadian govt submitted alternative proposals approved by majority of provinces. Approved Jennings Test |
".. 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 and principles of the period... Perhaps the main reason why conventions cannot be enforced by courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce legal rules..." Acting without the consent generallyexpected ‘would be unconstitutional in the conventional sense’ recognized in court |
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What happens in the case of a 'breach' of convention? |
Convention does not necessarily cease to exist, may require later affirmation Dicey argued ultimately would lead to a breach of law, ex: Parliament must meet each year, if it failed to do so authority for the maintenance of the army would lapse (Art 6 Bill of Rights 1689) Munro: .. the breach of a convention carries with it a destructive effect, which is absent with laws... (decreased legitimacy, political effects..) |
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How are conventions distinct from laws? |
Creation: C observed from undefined point, L in Act/judicial decision Certainty: increased certainty/clarity with L, C not easy to determine (varies) Alteration: L are revised, judicial decisions overturned, C evolves informally Enforceability: L enforceable by courts, C lack formal enforceability. not the product of legislative/judicial process. Breach: no defined legal sanction for conventions, may have political impact. Munro - serious breach may challenge effectiveness/validity |
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R v SS for Home Affairs, ex parte Hosenball Court of appeal declined to review Home Secretary's decision to deport a journalist in interest of national security R v SS for the Home Department, ex p Chelbak C sought judicial review of the Home Secretary's decision to deport him on grounds of national security |
Lord Denning (Hosenball): Lord Denning: "...he is answerable to Parliament as to the way in which he did it and not to the courts here..." Court recognizes the existence of convention of Ministerial Responsibility, Ministers being accountable to Parliament for their decisions |
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Carltona v Commissioners of Works Facts: C argued requisition of their factory was invalid. Order requisitioning factory was made under wartime regulations, had been signed by civil servant Held: signing such an order was a statutory power given to the Minister |
Lord Greene: "...Constitutionally, the decision of such an official is... the decision of the minister. The minister is responsible. It is he who must answer before Parliament... Carltona principle – a civil servant may exercise a statutory power on behalf of a minister even though the statute does not expressly allow the minister to delegate such exercise |
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AG v Jonathon Cape Facts: C sough injunction against D, acting on behalf of deceased cabinet Minister Richard Crossman & Sunday Times. Crossman had kept detailed diary of time in Cabinet, died before they were published. Sunday Times printed extracts in accordance with wishes. C argued issue on basis of collective Cabinet responsibility, which should be enforceable on grounds of public interest. Held: injunction unnecessary, diaries not confidential after 10 years |
Court acknowledged principle of a legal obligation of confidentiality in relation to Cabinet proceedings, took convention into account Lord Widgery CJ: ‘court must have power todeal with publication which threatens national security.’ but 'AG must show (a) that such publication wouldbe a breach of confidence; (b) that the public interest requires that thepublication be restrained, and (c) that there are no other facts of the publicinterest contradictory of & more compelling than that relied upon" |
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R v Lord Chancellor, ex parte Witham Facts: A unemployed, had no savings & received income support. He wished to bring proceedings for libel. Supreme Court Fees Order 1996 saw the minimum fee for a claim rise to 120sterling or 500. In addition, repealed the provisions of the 1980 Order which relieved litigants in receipt of income support from obligation to pay fees. A could not afford to issue proceedings, legal aid being unavailable for defamation. Held: Subordinate legislation can't infringe individual's common law right |
"General words willnot suffice. And any such rights will be creatures of the common law, sincetheir existence would not be the consequence of the democratic politicalprocess but would be logically prior to it.’ High Court held common law afforded special protection to a person's right of access to a court. Court held that the statutory provision removing the fee exemptions was ultra vires and unlawful. |
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Pros and Cons of adapting conventions to give them legislative-attributes: |
Pro: writing conventions would make them less flexible/more explicit. Would benefit rule of law Con: possibility of conflict between practice & text of convention. Flexibility can be advantageous, allowing for political development (ex: Crown & govt relations). Rule of law not so concerned with constitutional mechanisms as much as liberties. May blur separation of powers |
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How does Bogdanor describe Devolution? |
Devolution, transferring & sharing of powers between institutions of government in limited and defined framework, consists of: 1. Transfer to subordinate elected body 2. On a geographical basis 3. Of functions at present exercised by ministers and Parliament Involves divide regional & central government, but allowing the latter the ultimate power to make decisions applicable throughout the country |
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Prior to devolution, how was governmental power distributed in the UK? |
It wasn't distributed, concentrated at Westminster. Unitarianism:‘the concentration of the strength of the state in the hands of one visiblesovereign power’ – Walker |
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Why was devolution considered in 1998? |
Scotland – devolution of some power to anelected institution was considered by the Labor Government as potentialanswer to the Scottish dissatisfaction with Westminster’s ability to govern inthe Scottish interest Northern Ireland – devolution was envisaged as ameans by which to promote power sharing between the representatives of dividedcommunities and thereby bring an end to violence of the ‘Troubles’
Wales – no such compelling cause for devolution |
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What are the characteristics of the devolved governments: |
- Unicameralism (parliament has one chamber) - Proportional Representation - Formal and legal subordination to Westminster - 'Constitutional' review |
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Is the Scottish government sovereign? |
No, See: Scotland Act 1998: S29(1): ‘An act of the [Scottish Parliament] is not law so far as a provision of the Act is outside the legislative competence" - reserved powers specified in Schedule 5. Areas not specified are transferred S28(7) 'Does not affect Westminster’s Parliament’s sovereignty or its ability to make laws applicable in Scotland' BUT Sewel Convention, and Scottish Constitutional Convention acknowledges ‘the sovereign right of theScottish people to determine the form of government suited to their needs’ |
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What are the limitations on the Scottish Parliament in regards transferred powers? |
S29: may not legislative incompatibly with EU law, The ECHR (as defined in the HRA), The Scotland Act (with minor exceptions) S30: In devolved areas, can repeal acts of Westminster through Order in Council if approved by both parliaments. 2014 Scottish Independence Referendum - Westminster government committed to enhancing Scottish Parliament's powers. Smith Commission largely reflected in Scotland Bill 2015 |
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Does the UK now resemble a quasi-federal government? |
Wheare: Federalism; ‘the powers of government aredivided between a government for the whole country & governments for parts ofthe country ... each government is legally independent in itsown sphere. The government for the whole country has its own area of powers &it exercises them without any control ...and these latter in their turn exercise their powerswithout being controlled...Neither is subordinate to theother; both are coordinate.’ whereas with devolution power is not divided, it is devolved and lower levels of government remain subordinate to Westminster sovereignty |
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What are Bagdanor's views on the 'political reality' of Westminster's devolution? |
"Devolution... does not require the introduction of an enacted constitution" but ‘in constitutional theory alone thatfull legislative power remains with Westminster…[&] the supremacy of Parliamentis preserved...power devolved...will be powertransferred; and it will not be possible to recover that power except underpathological circumstances...relationship between Westminster &Edinburgh will be quasi-federal in normal times & unitary only in crisistime… formal assertion of parliamentary supremacy will become empty when itis no longer accompanied by a real political supremacy’ |
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Did England experience any of the effects of devolution? |
- Seen as 'gaping hole' in devolution settlement - Certain powers devolved to city majors (most prominently London) since 1999. Labor proposals for Regional Assemblies were initially rejected following a referendum in 2004. After the Scottish Independence referendum in2014, proposals for further devolution in England have gradually gained momentum (Cities & Local Government Devolution Bill) - Westminster acting as proxy for English parliament |
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What is the West Lothian Question/the English Problem? |
Represents following problems: - Scottish MPs help determine the UK Governmentwhich governs England; the possibility exists that UK Government could onlyonly command a Parliamentary majority in the House of Commons because ofScottish MPs - Scottish MPs can vote on legislation whichaffects only England & Wales whereas English MPs, because of devolution toScotland, can no longer vote on matters affecting Scotland only |
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In what ways can the UK be described as now having a multi-layered constitution? (Bamforth and Leyland) |
- Two-way distribution of power now exists, 'both 'upwards' to the European Union and 'downwards' to the devolved assemblies' - ECHR now play a direct role in national law - European integration and globalization have helped the UK keep up with changes in public law - Differs firmly from Diceyan concept of constitution and increasingly legal |
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Why has there been a call for reform of the constitution? |
- Barendt: worthlessness of conventions on controlling central government, 'at the mercy of the changing attitudes of politicians' - 1990s controversies: Arms to Iraq Affair and subsequent Scott Report (judicial inquiry after reports of arms sales by British companies) - Inability of common law/Parliament to protect FR. ‘…anyone who sees Parliament as a reliableguardian of human rights in practice is, I suggest, guilty of wishful thinking’– T. Bingham - Over-centralized govt leading to 'elective dictatorship' Hailsham - Archaic constitution, see: House of Lords |
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R v SS for Home Department ex p Simms Facts: A simple ban which prevented any prisoner speaking to journalists professionally and without discrimination was unlawful. Held: Parliament cannot override fundamental rights implicitly |
Lord Hoffman ‘Parliamentary Sovereignty means that parliamentcan, if it choses, legislate contrary to fundamental principles of humanrights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’ |
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In what way has constitution developed in past few decades? |
1997: Labour party manifesto, calling "system of government ... centralized,inefficient and bureaucratic". Wished to increase transparency, accountability, subsidiarity and decentralization 1998: Human Rights, Scotland Act, Government of Wales Act, N. Ireland 1999: House of Lords Act 1999, Greater London Authority Act 1999 2000: Local Government Act, Freedom of Information Act, Political Parties, Elections and Referendums Act 2000 2005: Constitutional Reform, Government of Wales 2010: Constitutional Reform and Governance Act 2010 |
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What progress can be seen from Coalition government post 2010? |
- White Paper on a House of Lords Reform (May2011) - Fixed Term Parliaments Ac 2011 - European Union Act 2011 - Publication of the Cabinet Manual (October 2011) - Commission on the West Lothian Question(appointed March 2012) - D Oliver: "shift since the early 1990s in the direction of subjectingpolitical processes and decisions to formal ‘hard law’ regulation that isenforceable by the courts – judicialization" |
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What plans have been put in place by the Conservative government? |
2006: pledged to 'scrap the HRA & replace it witha British Bill of Rights…whichallows us to take the action we need to defend our citizens against seriouscrime & our country against terrorism.’ – N. Herbert 2007: Governance of Britain Green Paper, "growingrecognition of the need to clarify not just what it means to be British, butwhat it means to be in the UK" through written constitution. 2012: Bill of Rights Commission, recommending British Bill of Rights 2015: Consultation on Bill of Rights delayed, idea of Constitutional Court |
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Why are some critics weary of a Bill of Rights being introduced? |
Idea that Bill of Rights, like the ECHR will "empower the judges to unsettle decisions made in the political arena ...thereby frustrate the political process’ K.D. Ewing |
