6. CON LAW: UK CONSTITUTION

Question 1

UK CONSTITUTION

Answer 1

THIS IS AN ESSAY TOPIC.

Below is an answer to the question “Is an Uncodified Constitution advantageous?”

Learn and you will be able to adapt answer relevantly to a question.

Question 2

UK Const: INTRO

Answer 2

• Theoretically, the lack of a codified constitution helps contribute to the FLEXIBILITY of the UK constitution
• – whether a flexible constitution is advantageous is however debatable.
• In practice, codified/uncodified constitutions have little effect on restraining governments.
• A comparison with more RIGID codified constitutions like US reveals that while codification may initially create rigidity, a constitution’s rules and principles are only effective in so far as the representatives of the LEG, EXE and JUD are willing to represent, uphold and respect them.

Question 3

UK Const: FLEXIBILITY

Answer 3

‘Flexibility’ here refers to the ease with which a constitution can be changed and adapted.

The desirability of it is questionable:
ADVANTAGEOUS: it allows a Const to be adapted to suit circumstances as they arise and meet present socio-economic challenges.
- some changes have been good:
--- Slavery Abolition Act 1833
--- Bill of Rights 1689
--- Freedom of Information Act 2000
--- HRA 1998

DISADVANTAGEOUS: As a Const is/should be designed to guarantee basic human rights and liberties by defining the relationship between the state can citizens, the ability to easily change the very thing that protects those rights is questionable, dangerous and in this way undesirable.

• The effect of some changes is disputable:
• – Parliament Acts 1911, 1949
• – European Communities Act 1972

Question 4

UK Const: UK FLEXIBILITY: STATUTES

Answer 4

• Parliament can, with a SIMPLE MAJORITY, fundamentally alter the constitution by simply passing a statute.

Question 5

UK Const: UK FLEXIBILITY: CASE LAW

Answer 5

• traditionally allowed the law to develop ORGANICALLY to issues as they ARISE
• judges possess fairly broad interpretative powers, particularly regarding HR cases (s.3 HRA 1998; R v A). With EU legislation, interpretation MUST go “as far as possible” to bring UK law in line with it.
• also, in special cases, such as (R v R), the courts held that a statute on marital rape was WRONG. Therefore the court effectively has the ability to override a statute if necessary.

Question 6

UK Const: UK FLEXIBILITY: CONVENTIONS

Answer 6

Def: UNCODIFIED, LEGALLY ENFORCEABLE rules that govern the conduct of officials and government.

• their flexibility lies in the fact that they can begin/change/disappear informally without any legal/political process and do NOT require a basis in case law or legislation.
• NB: conventions are recognised by courts but are NOT ENFORCEABLE by them (Carltona v Commissioner of Works). However, they are often POLITICALLY ENFORCEABLE (Reference Re Amendment to Constitution of Canada)
• In a conflict between CONVENTION and LAW, courts will uphold the law, NOT THE CONVENTION. (Madzimbamuto v Lardner-Burke)

EGs

• The monarch’s non-exercise of the right to refuse assent to bills passed by Parliament.
• HofL deference to HofC
• Parliament meeting (at least) once a year
• the PM choosing their cabinet
• judges not taking active roles in politics

Question 7

UK Const: UK FLEXIBILITY: ROYAL PREROGATIVE

Answer 7

Def: the authority, privileges and immunities belonging to the Crown, exercised by the EXE.
- gives flexibility because while not UNLIMITED, it grants the EXE power to take action WITHOUT EFFECTIVE PARLIAMENTARY SCRUTINY or LEGAL PROCEDURE.

EGs

• Declaration of War
• The Prerogative of Mercy
• Making treaties
• – NB the Constitutional Reform and Governance Act 2010, requires that international treaties obtain Par Approval in order to be ratified.

Question 8

UK Const: LIMITS ON FLEX

Answer 8

Despite the apparent flexibility of the UK Const IN THEORY, IN PRACTICE the Const demonstrates a number of rigid elements

Question 9

UK Const: LIMITS ON FLEX - EU LAW

Answer 9

Little or NO flexibility when complying with EU law. Whether it be the application of Treaties, Regulations, Directives and ECJ case law (R v SoS Transport ex p Factortame (No. 2)) resulting in the disapplication of UK law.

NB: (R(HS2 Alliance) v SoS Transport), Lord Neuberger stated that EU law would not always take precedent over key aspects of UK Const, including constitutional statutes and common law. (IN discussion of Art 9 Bill of Rights)

Question 10

UK Const: LIMITS ON FLEX - PARTIAL ENTRENCHMENT, CONST STATUTES AND COMMON LAW

Answer 10

Some laws have effectively, if not legally, gained a CONSTITUTIONAL STATUS and cannot be IMPLIEDLY REPEALED (Thoburn v Sunderland CC per Laws LJ). To repeal such laws would in practice, be POLITICALLY DIFFICULT. Such as:

• Magna Carta 1215
• Bill of Rights 1689
• Act of Settlement 1701
• Parliament Acts 1911, 1949
• Statute of Westminster
• European Communities Act 1972
• HRA 1998
• The Scotland Act 1998
• Constitutional Reform Act 2005

COMMON LAW
- arguably establishes certain constitutional principles which, even though they can be overridden by statute, the courts will presume that Parliament intended to legislate in line with them. Can have a SIGNIFICANT IMPACT on the interpretation of a state and the law (R(Evans) v AG; A v BBC; Kennedy v Charity Commission; Osborn v Parole Board)

Question 11

UK Const: LIMITS ON FLEX - CONVENTIONS

Answer 11

Certain CONSTITUTIONAL CONVENTIONS are strongly established and cannot IN PRACTICE be easily modified. These may be the:

• Collective and Individual Ministerial Responsibility
• the Queen never refusing assent to Parliamentary bills
• HofL deference to HofC
• PM choosing cabinet

Question 12

UK Const: CODIFIED and RIGID

Answer 12

Use US as an example. Their const has routinely been ignored by ALL three branches of Gov. Ultimately, to be effective, Gov officials must recognise and respect a constitution and judges must interpret it correctly.

Question 13

UK Const: CODIFIED/RIGID - LEG

Answer 13

Congress and the Senate have passed laws that technically are outright violations of the constitution

• Troubled Assets Relief Program (2008)
• – the power to relieve such assets does not exist under powers granted to Congress under Art 1 Section 8.
• National Defence Authorisation Act 2013
• – Violation of the 5th amendment under s.1021 by providing for the indefinite detention of American citizens without trial.
• The Patriot Act 2001
• – Violation of the 4th amendment through warrantless searches.

Question 14

UK Const: CODIFIED/RIGID - EXE

Answer 14

The EXE has often taken actions that have/attempted to flout the constitution:

• Executive Order 9066
• – the internment of Japanese Americans during World War 2.

The EXE has extended its authority through agencies that bypass Congress’ legislative function and encroach on its power or creates powers not conferred by the constitution.

• National Security Agency (NSA)
• – Violation of the 4th amendment via warrantless searches

Question 15

UK Const: CODIFIED/RIGID - JUD

Answer 15

The JUD has arguably failed to uphold fundamental principles of Const law:

• National Federation of Independent Business v Seblius
• – the court’s reasoning that imposing a charge on persons for not buying a particular service constituting a tax rather than a penalty is questionable.

Elements of the JUD also practice unconstitutional acts themselves

• Foreign Intelligence Surveillance Act Courts
• – issuing general warrants on the basis of secret evidence or NO evidence at all.

Question 16

UK Const: CONCLUSION

Answer 16

The merits of a flexible constitution, and the UK constitution, in practice, is debatable.

A codified constitution does not however guarantee any degree of rigidity, not is it clear that it is any more effective at promoting stability or granting individual rights than an unwritten const.