The Uk Constitution Responsible Government Notes

Con & Ad : The UK Constitution & Responsible Government

What is a constitution

• Principles of ‘Constitutionalism’: constitutions exist to ensure citizens are governed in accordance with democratic principles, and that those who govern have legitimacy for their actions. Principles of constitutionalism suggest:

  • (1) the limitation of power: exercise of power within legal limits and must be accountable in law. And that exercise of power must conform to respect for individuals and individual rights.

  • (2) the separation of powers: to avoid excessive concentration/abuse of power.

  • (3) doctrine of responsible and accountable government: gov accountable to the people (electorate), on whose trust power is held.

• Function of constitution: To ensure (1) the allocation of power amongst the various bodies that compose a state; and (2) between the state and its citizens.

• Lord Bolingbrooke; an ‘assemblage of laws, institutions and customs’.

• UK constitution

  • It is an uncodified/unwritten constitution: not codified in one single document (CF, eg USA); a set of arrangements and rules, both written and unwritten, which combine to create a constitutional state.

  • It is a ‘flexible’ constitution: i.e. not ‘entrenched’ (like the USA) --allows amendment through a simple majority in the supreme UK Parliament.

  • it is a ‘supreme’ constitution: legislative powers of the sovereign body (Westminster Parliament) are supreme/unlimited (though EU Law poses a challenge to this).

  • it is a ‘unitary’ constitution: (cf a ‘federal’ constitution, eg German and US Constitution); i.e. most power is centrally controlled in Westminster/Whitehall (though some power devolved to regional bodies, eg councils, Scottish Parliament, N Ireland and Welsh Assemblies – but with supreme power lying in Westminster Parliament);

  • and it lies somewhere between a system of ‘separated’ and ‘fused’ powers: there is separation in the clearly distinct bodies exercising legislative, executive and judicial function; but, there is fusion in the significant overlap between government and Parliament.

  • Gradual/evolutionary development

• Difference from other constitutions (eg USA, Germany):

  • No constitutional court

  • Not codified: dispersed sources

  • Role of conventions (‘fill the gaps’, Jennings)

  • Amendment process: no entrenchment.

Legal sources/rules of constitutional law

(1) Legislation

• Acts of Parliament = primary source of constitutional law in UK. None are formally entrenched—can be repealed with a simple majority.

• ‘Constitutional status’ of some statute (Thoburn, Laws LJ) can only be repealed expressly, no implied repealed, egs:

  • Magna Carta 1215

  • Bill of Rights 1689

  • Act of Settlement 1701

  • Act of Union 1707

  • Parliament Act 1911 & 1949

  • Statute of Westminster 1931 (established independence of Dominions)

  • European Communities Act 1972

  • Police & Crim Evidence Act 1984 (PACE)

  • Scotland Act 1998; Northern Ireland Act 1988; Gov of Wales Act 1998/2006.

  • HRA 1998

  • Constitutional Reform Act 2005

(2) Royal Prerogative [[see ‘Prerogative Power’ topic]]

• Dicey ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’.

• A form of power recognized by the common law. All the privileges and immunities recognized at common law as belonging to the Crown. Courts determine its ambit and existence.

• Egs: prerogative of mercy; prerogative relating to signing of treaties and declaration of war.

(3) Judicial precedent/common law

• Egs:

• Entick v Carrington (1765): need for legal authority to justify government action when interfering with individual right. Watershed in establishing a tradition of civil liberties in English law.

• GCHQ (1985): prerogative power is subject to review by the courts.

• Factortame (No 2) (1990): acceptance of supremacy of EU law.

• A & Others (Belmarsh) (2004): re indefinite detention of foreign prisoners, incompatible with ECHR (Art 14)—> issued Declaration of Incompatibility under HRA 1998.

(4) EU law

• ECA 1972

• Primary legislation: treaties (EC Treaty 1957, TEU 1994).

• Secondary legislation:

  • regulations (directly applicable, binding in entirety);

  • directives (binding as to result to be achieved);

  • decisions (addressed to specific parties)

• ECJ case law are binding—eg Factortame 2

Non-Legal sources of UK constitution

(1) Constitutional conventions

• Dicey, conventions = descriptive rules of behaviour: ‘conventions, understandings, habits of practices which though they may regulate the conduct of officials are not in reality laws at all since they are not enforced by the courts.’

• Sir Ivor Jennings (and Munro and Marshall) conventions as binding rules, different perspective to Dicey: conventions as actual binding rules of behavior, albeit not legally enforceable. Similar view taken by Marshall and Moodie in Constitutional Conventions: ‘binding by and upon those who operate the constitution, but which are not enforced by the law courts’.

• Cabinet Manual, conventions = ‘rules of constitutional practice that are regarded as binding in operation but not in law’.

• Nature of Conventions:

  • (1) informal rules of political practice.

  • (2) usually develop in an evolutionary way.

  • (3) unlike rules of law, do not have a clear source in legislation or case law.

• Sir Ivor Jennings (1959, Law and the Constitution), three stage test of identifying a constitution.

  • (1) What are the precedents?

  • (2) Do the actors believe they are bound by a rule?

  • (3) Is there a (constitutional) reason for the rule?

• Sir Ivor Jennings: ‘they provide the flesh which clothes the dry bones of the law’

• Reference Re Amendment to the Constitution of Canada (1981), Canadian Supreme Court:

  • Re convention that Canadian federal gov would not send a bill to Westminster altering the balance of federal/provisional gov power without the support of the Canadian provinces.

  • Ruling: Conventions are not laws, not legally binding

  • BUT conventions give strong political obligations: to ignore such a convention could be said to be ‘...

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