Public Law: Constitution

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What is a Constitution?

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A constitution is made up of fundamental rules and principles by which an organisation is governed. A political constitution deals with the entire organisation of a state and how its legal order is established. It will also give effect to values which society regards as important.

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Political Constitution

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Fundamental political principes of a state will be the key political ideas or doctrines on which the state is based. Establishes the framework of the state, including the division of the executive, legislature and judicial, and guarantees certain rights and freedoms to citizens.

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Classifying Constitutions

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Written / Unwritten

Republican / Monarchical

Federal / Unitary

Rigid / Flexible

Formal Separation of Powers / Informal Separation of Powers

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Written

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Constitution set out in a single document. Will contain the fundamental laws of the constitution and define the powers of the different branches of state. May also contain a Bill of Rights setting out fundamental civil liberties for citizens of the state.

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Unwritten

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Will not have its constitution set out in a single authoritative document but will be made up of a number of different sources, such as statute and case law.

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Republican

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Will usually have a democratically-elected president as the Head of State.

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Monarchical

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Will have an unelected monarch as Head of State (although the monarch's role may be largely ceremonial).

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Federal

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Division of power between the central government and regional government.

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Unitary

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Will have a single sovereign legislative body, with power being concentrated at the centre.

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Rigid

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Constitution is "entrenched", meaning that the constitution may be changed only by following a special procedure. Written constitutions tend to be rigid.

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Flexible

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Comparatively easy to change the constitution because no special procedures are necessary for the constitution to be amended.

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Formal Separation of Powers

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Has a clear separation both of functions and personnell between the executive, legislative and judicial branches of state.

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Informal Separation of Powers

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Likely to have a significant degree of overlap in terms of functions and personnel between the three branches of state. Therefore tends to have a series of checks and measures.

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The Rule of Law

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A principle of core values about the law that is considered so important that it makes up part of the constitution. Generally evolved out of common law and is not clearly defined. Includes that there should be no arbitrary exercise of power by the state or government, laws should be made properly following procedure, should be clear and accessible and certain, there should be equality before the law and the judiciary should be independent and impartial.

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The Separation of Powers

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1. The Legislature (or Parliament) - the body that makes the law.

2. The Executive (or Government) - the body that implements the law.

3. The Judiciary (or courts) - the body that resolves disputes about the law.

Complex way in which modern states work, it is unrealistic for each branch of state to be kept completely separate from the others. Each branch kept in check by powers given to the other branches (checks and balances).

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The Supremacy of Parliament

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UK has unitary constitution, and as such, Westminster is the supreme law-making body. The doctrine of supremacy of Parliament is central to how the constitution works.

A.V. Dicey: "Parliament ... [has] the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law ... as having a right to override or set aside the legislation of Parliament." (1885)

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Sources of the UK Constitution

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1. Acts of Parliament

2. Case Law

3. Royal Prerogative

4. Constitutional Conventions

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Acts of Parliament

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Some Acts have great constitutional importance, but each were enacted by Parliament in the same way as any other Act. They are not entrenched and may be repealed as any ordinary statute.

Easy for Parliament in legal terms to make significant changes to the constitution. Factors which limit their ability for changes tend to be more political, economoc or social.

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Case Law

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1. Common Law

2. Judicial Review

3. Interpretation of Statute

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Common Law

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Important source of some key principles of our constitution:

- Residual Freedom (citizen is free to do whatever he wishes unless the law clearly states that the action or statement is prohibited).

- Actions of the state must have legal authority.

- Legal disputes should be resolved by the judiciary.

- Habeas corpus and individual liberty.

- Right to a fair hearing.

- Parliamentary Supremacy.

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Judicial Review

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This is a mechanism which enables the courts to ensure that the Government and other public bodies exercise the powers which they have been granted in the proper way and so do not breach the rule.

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Interpretation of Statute

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Judiciary have made decisions of important constitutional significance when interpreting statute law, particularly in relation to the European Communities Act 1972 and the Human Rights Act 1998, which requires a degree of interpretation to incorporate the laws and principles delegated from the EU and the ECHR.

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Royal Prerogative

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Dicey defined it as: "the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown ... Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative."

Prerogative powers derive from the common law and are exercised by (or in the name of) the monarch. Essentially what remains of absolute powers exercised by the monarch and which have not been removed by Parliament. Powers mostly ceremonial now.

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Constitutional Conventions

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'Non-legal' source of the constitution.

Marshall and Moodie defined these conventions as: "rules of constitutional behaviour which are considered to binding upon those who operate the constitution but which are not enforced by law courts".

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Royal Assent

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Royal Assent is required for a Bill to become a valid Act of Parliament, but the monarch always assents to a Bill passed through Parliament.

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Monarch (Executive Branch)

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Convention that the monarch plays no active role in matters of government and the legal powers vested in the monarch are exercised on her behalf by the elected government of the day.

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Individual Ministerial Responsibility

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Government Ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct.

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Collective Cabinet Responsibility

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Cabinet collectively responsible to Parliament for the actions of the Government as a whole, and the Government must retain the confidence of the House of Commons. Cabinet must be united in public support of Government policy and so a Cabinet Minister must resign if he wishes to speak out in public against such policy (e.g. Robin Cook). Cabintet discussions must remain secret.

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Salisbury Convention

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Unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically-elected Government.

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Impartiality

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Members of the judiciary do not play an active part in political life.

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Criticising Judiciary

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Ministers and Members of Parliament do not criticise in public individual members of the judiciary.

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Should Constitutional Conventions be Codified

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Codifying would promote certainty and clarity. However, this would erode flexibility. Also conventions are too wide-ranging for them to be codified. Since they change fairly frequently, they would have to be updated regularly too.

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Other Sources

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Includes laws and customs (internal rules and procedures) of Parliament and various academic writings.

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Magna Carta 1215

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Symbolic value as the first assertion of limitations on the powers of the monarch.

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Bill of Rights 1689

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Imposed limitations on the powers of the Crown and its relationship with Parliament. Removed the power of the monarch to arbitrarily suspend Acts of Parliament and states that "Parliament ought not to be impeached or questioned in any court or place out of Parliament" (i.e. Parliamentary Supremacy).

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Parliament Acts 1911 and 1949

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Altered the relationship between the House of Lords and the House of Commons. Will of the HoCs would prevail over the HoLs by enabling legislation to be enacted without consent of the HoLs.

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European Communities Act 1972

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Act gave legal effect to the UK's membership of the EU and incorporated EU law and legal systems into our domestic law.

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Public Order Act 1998

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Relevant to civil liberties. Allows limitations to be placed on the rights of citizens to hold marches and meetings in public places.

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Acts of Devolution

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For example, the Scotland Act 1998. Acts created a devolved system of government in various parts of the UK. Enables a Scottish Parliament and gives Wales and Northern Ireland some decentralised power.

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Constitutional Reform Act 2005

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Reformed the office of the Lord Chancellor, transferring his powers as head of the judiciary to the Lord Chief Justice and permitting the House of Lords go elect its own Speaker. Also provided for the creation of the Supreme Court and a new Judicial Appointments Commission.

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Entick v Carrington (1765)

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Precedent: State officials could not act in an arbitrary manner and that exercise of power by the state had to have clear legal authority.

Facts: Secretary of State issued a general warrant for the arrest of Entick, who had allegedly been publishing "seditious material". Court found that there was no legal authority for such general warrants.

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Case of Prohibitions (Prohibitions del Roy) (1607)

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Precedent: Legal disputes should be resolved by the judiciary.

Facts: King sought to settle a dispute over land by making a ruling. Court held that the monarch had no power to decide legal matters by way of arbitrary rulings and that legal disputes should be properly resolved by the courts.

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A and others v Secretary of State for the Home Department [2005]

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Precedent: Habeas Corpus and the right to Individual Liberty.

Facts: Challenge to the provisions in the Anti-Terrorism, Crime and Security Act 2001, which permitted foreign nationals suspected of being involved in terrorist activities to be detained indefinitely without trial. House of Lords held that this was unlawful. This is now strengthened by Article 5 of the ECHR enacted through the Human Rights Act 1998.

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Right to a Fair Hearing

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Courts have repeatedly stressed the importance of the right to a fair hearing in common law, becoming a fundamental constitutional principle and an important part of the rule of law. This is not contained in Article 6 of the ECHR.

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Edinburgh & Dalkeith Railway Co v Wauchope (1842)

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Precedent: Parliamentary Supremacy and the Enrolled Act Rule

States that once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold that Act to be void.

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St Helen's Borough Council v Manchester Primary Care Trust [2008]

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Precedent: May LJ defined the function of the court in judicial review proceedings as being to review decisions of statutory and other public authorities, "to see that they are lawful, rational and reached by a fair process".

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R v Secretary of State for Transport, ex p Factortame Ltd (No 1) [1990]

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Example of the Interpretation of Statute.

House of Lords effectively suspended the operation of an Act of Parliament where the Act was in conflict with EU Law.

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Thoburn v Sunderland City Council [2002]

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Lord Justice Laws, in obiter comments, suggested there is a hierarchy of Acts of Parliament, making a distinction between "ordinary" and "constitutional" statutes.

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Crown Proceedings Act 1947

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Example of Parliament removing a prerogative power.

This Act abolished the immunity which the Crown had previously had in respect of claims against it in both tort and contract.

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Fixed- term Parliaments Act 2011

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Example of Parliament removing a prerogative power.

Act removes the power the Queen formerly exercised under the Royal Prerogative to dissolve Parliament at a time of her choosing.

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Examples of Individual Ministerial Responsibility

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In 1982, the Foreign Secretary, Lord Carrington, resigned following criticism of the administrative failings of his department, which had failed to foresee the Argentine invasion of the Falkland Islands.

In 1999, Peter Mandelson resigned for failing to disclose a personal loan and again in 2001 following claims that he had used his position to influence a passport application.

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Examples of Collective Cabinet Responsibility

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A Government which is defeated on a vote of no confidence in the House of Commons must resign, as Labour did when it lost such a vote in 1979.

United public support for Government policy: In 2016, Iain Duncan Smith resigned when he disagreed with cuts to disability benefits.

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A-G v Jonathan Cape

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Example of conventions not being enforceable by law.

Attorney-General sought an injunction to restrain the publication of Richard Crossman's book, 'The Diaries of a Cabinet Minister', but this did not come within the provisions of the Official Secrets Act. A-G argued breach of the convention, but it was held that there was no obligation to enforce this by law.

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Cabinet Manual 2010

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Government published this setting out the main laws, rules and conventions affecting the conduct and operation of government. This did not intend to have any legal effect.