Constitutional - Flexibility of the UK constitution

Question 1

Define ‘constitution’

Answer 1

A set of rules which:

a) Define a state’s fundamental political principles
b) establishes the framework of government of the state; and,
c) guarantees rights and freedoms of citizens.

Question 2

Sources of UK constitution:

Answer 2

a) Legislation
b) Case Law
c) Constitutional conventions
d) The Royal Prerogative

Question 3

1) Statute:

Answer 3

a) There are no special majorities or other arrangements needed to pass laws that will change the constitution. Rather, parliament can change the constitution by merely enacting a statute via the ordinary legislative process.
b) Contrasts with many other states - e.g. US constitution change requires 2/3 majority and support from 3/4 of all states.
c) E.g. of constitutional leg in UK: Bill of rights 1689, Parliament Acts 1911 and 1949, ECA 1972, HRA 1998

Question 4

2) Case Law:

Answer 4

Case law alters, addst and impacts upon the UK constitution in the following 3 ways:
a) Judicial interpretation of statutes - e.g. R v Secretary of State for Transport, ex p Factortame (No1) and (No2): House of Lords effectively suspended the operation of an Act of Parliament in conflict with EU Law.

b) Development of the common law:
(i) Residual freedom
(ii) Actions of the state need legal authority - state authorities may not act arbitrarily (Entick v Carrington).
(iii) Legal disputes to be resolved by judiciary

c) Judicial review - mechanism enabling the courts to review and determine the lawfulness of actions taken by government / public bodies. The power of JR allows the High Court to influence the UK constitution by holding the state to account for its actions, preventing it from acting arbitrarily.

Question 5

3) Constitutional Conventions

Answer 5

a) Rules of constitutional behaviour in the UK that are not legally enforced, yet are considered binding.
b) Despite being central to operation of UK const, rules are non-legal - flexible - may be created or dispensed with without delay.

c) e.gs of const. convention in UK:
- Royal assent
- Parliament meets throughout the year (legally only required once every 3 years)
- Ministerial individual and collective responsibility
- Monarch doesn’t play an active part in gov. policy
- All gov. ministers are members of house of Commons or Lords.

Question 6

4) The Royal Prerogative

Answer 6

a) Define: another non-legal source of the const. from which gov. derives power to take actions. - refers to powers held by monarch exercised by gov.
b) Adds flexibility - gov. can take action without act of parliament.

c) Areas which fall within RP:
- Foreign affairs - declarations of war and recognition of foreign states.
- Domestic affairs - Giving of Royal Assent (Queen), summoning of Parliament (after Fixed Term Parliament Act 20111 - power to dissolve parliament no longer under RP), appointment and dismissal of gov. ministers inc. PM.

Question 7

Arguments against UK constitution having a high degree of flexibility…

Answer 7

1) Statute repeal is difficult - requires great political upheaval e.g. ECA 1972, HRA 1998, Scotland Act 1998. (lol)
2) Statute enactment is slow - lengthy process and high pressures on parliament’s time e.g. HRA 1998
3) Constitutional conventions are deep-rooted e.g. Royal assent, ministerial responsibility.

Question 8

Conclusion:

Answer 8

• Const is flexible because it is able to evolve with changing political, social, economic and moral circumstances of the era.
• Practical difficulties of effecting const. change make process far more difficult that it seems on first appearance.
• Yet, lack of procedural formalities required for const. change cannot be ignored - at heart of const. flexibility.

Question 9

Entick v Carrington

Answer 9

SoS issued general warrant for arrest and search of Entick; held there was no legal authority for issue of such warrants.

Actions of the state must have legal authority; state officials cannot act in an arbitrary manner.

Question 10

Case of Prohibitions (prohibitions del Roy) (1607)

Answer 10

King sought to settle dispute over land; held that monarch had no power to decide legal matters by way of arbitrary ruling.

Legal disputes should be resolved by judiciary, not by monarch or other.

Question 11

A and others v Secretary of State for the Home Department (Belmarsh Case)

Answer 11

Challenge to provisions in Anti-terrorism, Crime and Security Act 2001.

An individual who has been detained by the state has the right to have the legality of that detention tested before a court.

Courts will make a declaration of incompatibility where domestic legislation is incompatible with EU law.

Question 12

R v Secretary of State for Transport, ex p Factortame

Answer 12

Spanish fishing licence and the Merchant Shipping Act 1988

Judges have suspended statute when in direct contradiction with EU law. Where a conflict exists between UK and EU law, provisions of directly effective EU law will take precedence.

Question 13

Thoburn v Sunderland City Council

Answer 13

The test for whether a statute is constitutional is as follows:

1) Statute must condition the legal relationship between citizen and state in some general overarching manner;
2) Statute must change the scope of fundamental constitutional rights.

Question 14

Madzimbuto v Lardner-Burke

Answer 14

Rhodesia independence challenge

Conventions will not be legally enforced by courts.

Statute may override conventions.

Question 15

A-G v Jonathan Cape

Answer 15

Attorney General sought injunction to restrain publication of Richard Crossman’s book re. time he was in cabinet - failed as didn’t come within provisions of Official Secrets Act. Tried to rely on const. convention of collective cabinet responsibility; held that importance of conv recognised but no public interest in injunction.

Conventions will not be legally enforced by courts, though the confidentiality rule may give rise to legal obligations.