constitution Flashcards
Madzimbamuto v Lardner-Burke [1969] 1 AC 645
Key point
The acts, orders and legislation made by an illegal regime are considered invalid and cannot override the right of the United Kingdom Parliament, as the lawful sovereign, to make laws.
The convention that the United Kingdom Parliament does not legislate on matters within the competence of the Legislative Assembly without the agreement of the Government of Southern Rhodesia is not legally enforceable
Facts
Southern Rhodesia became a self-governing British colony in 1923
On November 5, 1965 under a state of emergency in Southern Rhodesia, the respondent Minister of Justice made an order to detain the appellant’s husband, M
On November 11 of the same year, the Prime Minister and his colleagues issued a Declaration of Independence
On November 16, the Westminster Parliament passed the Southern Rhodesia Act 1965 which declared that Southern Rhodesia remained a colony, and provided for the Queen to exercise her legislative powers by Order in Council
Subsequently, the Southern Rhodesia (Constitution) Order 1965 was made; s.2(1) declared the new 1965 Constitution void, whilst s.3(1) temporarily suspended the power of the Legislative Assembly
The Prime Minister and the Legislative Assembly nonetheless established an illegal regime under the 1965 Constitution, whereby M’s detention was extended under emergency regulations
In the Appellate Division of the High Court of Southern Rhodesia, it was held that the section of the emergency regulations used to detain M were ultra vires; Hence, the appeal was allowed
Soon after, a new order was made to keep M detained and this was determined as being legally valid
M appealed to the Privy Council
Issue
Was the emergency regulation under which M was held detained valid?
Held (Privy Council, Rhosedia)
The appeal was allowed; The order under which M was held detained was invalid and had no legal effect.
Lord Reid
The convention that the United Kingdom Parliament does ‘not legislate without the consent of the Government of Southern Rhodesia on matters within the competence of the Legislative Assembly’ is not legally enforceable (p.648)
The relevant provisions under the Southern Rhodesia (Constitution) Order 1965 were ‘within the authority conferred by the Act of 1965’ (p.716)
Both the Act of Parliament and Order in Council are valid and have full legal effect
Since the Crown retained full sovereignty, even under the principle of necessity it is not possible to override its legal right ‘to make laws as it may think proper for territory under the Sovereignty of Her Majesty’ (p.729)
This, in turn meant that Parliament ’removed from Rhodesia the power to legislate for itself’ (p.729)
Commentary
In obiter dictum, Lord Reid commented on parliamentary sovereignty, recognising the notion that Parliament could do things which are unconstitutional without the court having the power to declare such Acts of Parliament as invalid (p.723)
Lord Pearce’s dissenting judgment offers an interesting alternative analysis; In despite of recognising the Crown’s full sovereignty, he nevertheless upheld the emergency order under the principle of necessity. He held that recognition may be given to some of the acts, orders and legislation of an illegal regime, where the purpose of such acts, orders and legislation is the maintenance of law and preservation of peace.
Madzimbamuto: Lord Reid stated that the label of “unconstitutional” action implies that “the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things → Forces Parliament to face political costs of abrogating fundamental rights
Attorney General v Jonathan Cape Ltd [1976] QB 752 (QB)
Key point
The court may provide redress for the breach of a non-legal convention, where such a convention is indirectly protected by the common law duty of confidentiality
Facts
Former Cabinet Minister, Richard Crossman, kept a diary which detailed Cabinet discussions to be published in a future book
In May 1974, volume one of the book was sent to the Secretary of Cabinet (S), but was rejected
In January 1974, the first extract was published in the “Sunday Times” without S’s approval
In the first action, the Attorney General (A) applied for an injunction against the publishers and literary executors of Crossman, arguing that the principle of collective ministerial responsibility meant that there was a public interest in keeping Cabinet details confidential
In the second action, A applied for an injunction against “Sunday Times” to restrain them from publishing extracts of the book
Issue
Is the court authorised, on grounds of public policy, to prevent the publication of information in breach of confidence?
Held (Queen’s Bench)
Both actions were dismissed; The court was not authorised to restrain the publication of information that was from as far as 10 years prior and as such, had lost its confidential character and would no longer undermine the doctrine of joint Cabinet responsibility.
Lord Widgery CJ
On collective ministerial responsibility and duty of confidentiality in general
The convention of joint Cabinet responsibility means that ‘any policy decision reached by the Cabinet has to be supported thereafter by all members of the Cabinet whether they approve of it or not’ (p.764)
Such a convention is not enforceable at law, being ‘an obligation founded in conscience only’ (p.765)
Ministers owe a common law ‘duty of confidence in respect of his own views expressed in the Cabinet’ (p.770), which is enforceable in tort
Where the individual opinions of Cabinet Ministers are published in breach of this duty of confidence, the court can restrain such publication where this is in the public interest
On the current case
There is a public interest in protecting the convention of collective ministerial responsibility, and ‘the application of [the] doctrine might be prejudiced by premature disclosure of the views of individual Ministers’ (p.771)
However, since there had been a time period of 10 years, the confidentiality of the information in the diaries had lapsed and therefore also the court’s ability to restrain publication
In any case, the publication of the diaries would not ‘in any way inhibit free and open discussion in the Cabinet hereafter’ (p.771)
Commentary
This case confirmed the existence of collective ministerial responsibility as a convention and its position as an ‘established feature of the English form of government’ (p.770)
Allan: This is tantamount to courts enforcing the convention
The CC of collective responsibility was recognised, and the case indicated a legal remedy for conduct which tended to undermine it → Therefore, the CC was enforced
Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151
Key point
Laws LJ suggested that a hierarchy of ordinary and constitutional statutes, constitutional statutes could only be expressly and not impliedly repealed by Parliament
Facts
The Units of Measurements Regulations 1994 was introduced pursuant to Sections 2(2) and (4) of the European Communities Act 1972, which specified that the use of the pound as the primary metric would be deemed illegal under section 8 of the Weight and Measures Act 1985
Steve Thoburn and the other appellants argued that the pound and the kilogram were seen to be equally legal units (notwithstanding modifications from 1984) and would thus operate as an implied repeal of Section 2(2) of the ECA 1972
Issue
Did the Weights and Measures Act 1985 impliedly repeal Section 2(2) of the ECA 1972 to bring the law into closer compliance with the obligations under EU law?
Held (Divisional Court)
The court dismissed the appeals and found that the 1985 Act (in its original enactment) did not impliedly repeal Section 2(2) of the ECA 1972 as the ECA is a constitutional statute
Laws LJ
Laws LJ suggested that “we should recognise a hierarchy of Acts of Parliament: as if they were “ordinary” statutes and “constitutional” statutes”: [62]
The constitutional statutes suggested by Laws LJ include: the Magna Carta, the Bill of Rights 1689, the Acts of Union 1707, the Reform Acts, the Human Rights Act 1998, The Scotland Act 1998, the Government of Wales Act 1998 and the European Communities Act 1972
Furthermore, “ordinary statutes may be impliedly repealed. Constitutional statutes may not.”: [63]
For the repeal of a Constitutional Act, Laws LJ suggested that “the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation … The ordinary rule of implied repeal does not satisfy this test.”: [63]
“1) All the specific rights and obligations which EU law creates are by the ECA incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation. (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom’s relationship with the EU rests with the domestic, not the European, legal powers.” [69]
Commentary
Laws LJ asserted at [69] in point 4 that the ultimate basis of EU law supremacy is in domestic powers; this meant that the Supremacy of EU law is subject to recognition by domestic courts and therefore, domestic courts could at any time choose not to give EU law supremacy – although this is not relevant anymore after the repeal of the ECA
This case provided further affirmation of the supremacy of EU Law that has been incorporated into domestic law by virtue of the ECA over all other domestic laws, which had been laid down in Factortame
R (Buckinghamshire County Council) v Transport Secretary (HighSpeed 2) [2014] UKSC 3; [2014] 1 WLR 324
Key Points
In obiter, if the Bill of Rights 1688 is a more fundamental statute than the ECA 1972, and was outside the contemplation of the Parliament when it enacted the ECA, it can take precedence over EU laws (This is partly moot now, as the UK has withdrawn from the EU)
This case builds upon the decision in Thoburn [2002] EWHC 195 which established the hierarchical distinction between “constitutional” and “ordinary” statutes (see Laws LJ judgment at [62] in Thoburn) within the UK constitution
Facts
The UK Government wanted to build a high speed railway (HS2) network linking London to Manchester and Leeds via Birmingham
The Government issued two command papers (one in March 2010 and the second in January 2012) laying out the Government’s proposed strategy and plans in regards to building HS2. The second of these command papers was known as “the DNS” (Decisions and Next Steps) (name is relevant during case).
The claimants brought claims for judicial review on two grounds:
The hybrid bill procedure which the Government wanted to use to deliver phase 1 of HS2 in Parliament was incompatible with the Environmental Impact Assessment Directive 2011/92/EU: article 6(2) of this Directive requires that the public be given “early and effective” opportunity to “express their opinion” about proposed development plans, however, the hybrid bill procedure passes an Act in much the same way as regular legislation, save an additional stage which allows objectors to petition against the bill. For this reason, it was considered by the claimants to provide insufficient public participation.
That because the DNS set a “framework” for whether future project development consent was granted, it fell under the Strategic Environmental Assessment Directive 2001/42/EC (SEA), meaning that there should have been a strategic environmental assessment conducted (which there was not)
Held (Supreme Court)
Appeal dismissed
The hybrid bill procedure was held not to be incompatible with EU law, and in this, the argument by the claimants that party politics would excessively dilute the informed consideration given by politicians to the Bill was rejected. The participative aspects of the Bill were sufficient.
It was held that the command paper (the DNS) fell outside the scope of the SEA, because it was not a “framework” in the sense that it constrained the decision which Parliament could ultimately take on the development. In the words of Lord Sumption, the development plan could only be described “as influential rather than determinative”: [123]
Judgment
The respondents argued that the court should not even consider the compatibility of the hybrid-bill procedure with the EU directives, claiming that it was contrary to Article 9 of the Bill of Rights, which provides that proceedings in Parliament cannot be questioned in a court of law
The court skirted this dilemma by framing the case as one where they were required to interpret EU legislation and its requirements, rather than examining parliamentary process
Regardless of the court’s decision that Article 9 of the Bill of Rights was not engaged by the case, Lord Neuberger and Lord Mance considered the possibility of what would happen if such a fundamental statute were engaged. The crux of this discussion was that it was “certainly arguable” (at [207]) that fundamental statutes exist within the UK constitution which the Parliament responsible for the ECA 1972 did not authorise the abrogation of
This discussion leads to the tacit conclusion that there is a hierarchy of constitutional statutes within the UK constitution. Lord Neuberger and Lord Mance’s analysis infers that the Bill of Rights is more fundamental than the ECA 1972
Commentary
Whilst the creation of a hierarchy of constitutional statutes might clarify the way that EU law ought to be treated after Factortame (No 2) ([1990] 1 AC 603), it creates more problems than it solves
How, for example, should we resolve the situation if two fundamental UK statutes conflict? After all, it is not always possible to see the risk of incompatibility between two fundamental statutes until both Acts have passed and been in existence for several years
Furthermore, there is no metric by which we can measure fundamentality to resolve which statute should take precedence
David Feldman, ‘None, One or Several? Perspectives on the UK’s Constitution(s)’ (2005) 64(2) CLJ 329 - what are the four functions of the constitution?
- ‘Conventions of the constitution are means of holding in check the tension between the formal, legal appearance of the constitution and the current practice.’
- ‘the “corsetry” function, the corset taking the form of such procedures as judicial review and parliamentary or electoral accountability.’
- Four roles of the constitution: institutionalisation, accountability, legitimisation, flexibility
- Conflicting views of the constitution: does it place primacy on Parliamentary Sovereignty, executive power, or the rule of law?
- Perception of constitution is based on position (judiciary, executive etc)
- Feldman
- ‘In areas of overlapping or concurrent responsibility, how are potential clashes to be avoided? The answer has been to develop certain more or less formal agreements and conventions between the devolved and central institutions. Some of these have been reduced to writing and published as Concordats, and the arrangements include an agreement that the Westminster Parliament will not legislate for Scotland in relation to a devolved matter unless the Scottish Parliament has passed a motion (a “Sewel motion”) agreeing to the Westminster Parliament doing so.’
Importance of certain functions/roles perceived differently due to one’s institutional position. The question of whether the doctrine of Parliamentary sovereignty, judicial independence and review or executive power takes primacy depends on position in system. Constitution is unwritten which allows these opposing views to exist. Politics should be process of dialogue to reconcile these views rather than authoritative statement on what it should be as this formal declaration will normally not match up with reality.
John Griffith, ‘The Political Constitution’ (1979) 42 MLR 1
- There are, of course, other ways of analysing the working of the constitution than describing it as the state of a nation in equilibrium. It is arguable that society is in reality, especially at this time, in a highly combustible condition. I shall indeed argue that conflict is at the heart of modern society.
- Legislators come to their own conclusions of what is best on their own criteria. Most importantly they represent and promote particular interests within our conflictual society.
- I do not disbelieve in generalised a priori principles. I have them filling my pockets and coming out of my ears. But they cannot be guidelines for legislative or administrative activity, because such principles, in their application to particular situations, are the very questions which divide not unify opinion
According to Dawn Oliver, what is ‘accountability’? In a purely legal constitution, how would accountability be realised? In a purely political constitution, how would accountability be realised?
‘Geoffrey Marshall’s analysis. It is about requiring a person to explain and justify–against criteria of some kind–their decisions or acts, and then to make amends for any fault or error, whether by reversing the decision, or paying compensation or in some other way–even resigning from office.’
Oliver – relying on convention for accountability (i.e. political consequences)
Currently, accountability is found in civil servants’ accountability to ministers, not electorate. Therefore more transparency needed? When this fails it is left to judges and their limited powers in enforcing accountability.
Legal constitution – acts of government could be challenged as unlawful. Giving courts real power to restrict or ‘strike down’ Acts instead of merely issuing declarations or having to rely on a different legal rule rather than the simple fact that it is unconstitutional. From this, legal sanctions could arise –
1. Fictional nation of Equilibria suggested monetary compensation for breaches.
2. Otherwise, forcing ministers to resign or in effect enforcing already existing political sanctions.
3. Making them explain their actions.
Political constitution - relies on the idea that ministers will usually adhere to constitutional principles of government ‘the good chap theory of government’. The consequences are
1. Political pressure and sanctions – effective due to impermanency of elected officials.
2. Pressure to resign
3. Loss of popularity
Works because:
1. Elected officials have to submit themselves to re-election
2. Openness of political process and decision making
3. Judicial review – can issue criticism
Definition and test for constitutional conventions?
Barber: Non-legal rules which shape the ways in which constitutional power is exercised within the state
The Jennings Test proposes three questions one must ask to determine whether a certain practice amounts to a convention:
1. What precedent is there?
2. Do these adhering to the precedent feel bound to do so?
3. Is there a reason for the rule
Elliot: three questions are not equal, the main determinant of the importance of a non-legal rule or convention is the strength of the underlying reason, i.e. 3
Examples: Royal assent, collective ministerial responsibility, Sewel convention, Ministerial code, Salisbury convention (HoL should not reject a govt Bill that implements a manifesto pledge and for which the govt therefore has an electoral mandate), Bingham: “There is a convention that ministers, however critical of a judicial decision, and exercising their right to appeal against it or legislating to reverse it retrospectively, do not publicly disparage it’
are laws and conventions distinct? what does barber mean by the crystallisation of convention into law?
Doubts Dicey’s claim that courts do not recognise conventions – Barber draws distinction between recognition and enforcement. Indirect enforcement of conventions (interpretative aid).
Independent and intertwined
In recognising a convention, they are applying the Jennings test or Marshall’s test. Implied approval – convention must be either attractive or compelling enough to warrant following (Allan)
Difficult – rules that courts recognise are not all laws (e.g. instructions) therefore it does not follow that recognised conventions have legal force due to their recognition.
Matter of degree; a spectrum not binary distinction
Crystallisation – not clear intervention by a law-making body that turns a convention into a law:
Regarding the “crystallisation” of conventions into laws, Barber means that over time, conventions can gradually become more formalized and law-like through a process of:
1. Being codified or written down in authoritative documents (e.g. the Ministerial Code
2. Developing secondary rules that govern their recognition, change, and adjudication (similar to Hart’s account of a legal system)
3. Acquiring institutional dimensions, with bodies that create, modify and adjudicate the rules
4. Gaining coercive force, with consequences for breaches
