constitutional fundamentals

Question 1

what are the two main ideas of a constitution?

Answer 1

idea that it is a rulebook, and idea that it creates systems of government

Question 2

what are the general principles of constitutions?

Answer 2

they create the executive, judiciary and legislative; and they also contain statements of people’s basic rights and freedoms

Question 3

does the UK have a constitution?

Answer 3

not in the written sense - Cabinet Office’s Cabinet Manual (2011)

• “The UK does not have a codified constitution”
• “Constitutional order has evolved over time and continues to do so”
• “Consists of various institutions, statutes, judicial decisions, principles and practices that are commonly understood as constitutional”

labelled as the ‘dispersed constitutional rulebook’

Question 4

what are the ‘4 distinguishable senses’ dr geoffrey marshall talks about re: understanding the term ‘constitution’?

Answer 4

1. “Combination of legal and non-legal (or conventional) rules that currently provide the framework of government and regulate the behavior of major political actors”
2. “Single instrument promulgated at a particular point in time and adopted by some generally agreed authorization procedure under the title ‘constitution’”
3. “Totality of legal rules” – doesn’t matter whether contained in “statutes, secondary legislation, domestic judicial decisions or binding international instruments or judicial decisions” as long as it “affects the working of government”
4. “List of statutes/instruments that have an entrenched status and can be amended or repealed only by a special procedure”

the UK has a constitution in the 1st and 3rd senses

Question 5

why does professor anthony king argue that it doesn’t matter whether there’s a ‘single instrument’ (term that dr geoffrey marshall uses)

Answer 5

he argues that constitutions are “never written down” and, if they are, only “in principle”; also makes a distinction between “small-c constitutions” and “capital-c Constitutions”

• Constitutions = written documents, but not coextensive with “all of a country’s most important rules regulating the relations between different parts of government and those between the government and the people”
• Constitutions (small-c): “set of important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country”

Question 6

what are the sources of rules forming the constitutional framework in the UK?

Answer 6

1. Cabinet Manual
2. statute book
3. judicial decisions
4. constitutional conventions
5. EU law
6. international law

Question 7

what is the Cabinet Manual?

Answer 7

its preface states that it “records rules and practices, but is not intended to be a source of any rule”

Question 8

why was the reaction from both the House of Lords and House of Commons lukewarm? (although the latter more complimentary than the former)

Answer 8

House of Lords Constitutional Committee, 12th Report (2010-2012)

• “Limited value and relevance”
• “Should only seek to describe existing rules and practices; it should not be endorsed by the Cabinet nor formally approved by Parliament; and it must be entirely accurate and properly sourced and referenced”

House of Commons Political and Constitutional Reform Committee, Constitutional Implications of the Cabinet Manual, 6th Report (2010-2012)

• “There is scope for the constitutional impact of the Cabinet Manual to be greater than this. This becomes particularly true where the Cabinet Manual’s con- tent extends beyond matters that are purely for the Executive”
• “not a written constitution. It has, however, considerable overlap in content with what might be expected of a constitution”

Question 9

what is the statute book?

Answer 9

1. All the Acts of Parliament that have received Royal Assent (final stage of legislation-making process in Parliament) and which are waiting to be brought into force/are in force
2. Contains several Acts of Parliament that can be described as ‘constitutional’ in the sense used by Prof King above

Question 10

what is the problem with the statute book?

Answer 10

doesn’t provide a complete set of rules, but only those that have been enacted by Parliament

• Won’t show rules in other forms e.g. conventions or general principles
• There have been occasional references in Acts of Parliament to constitutional conventions, e.g. s. 1 of the Health and Social Care Act 2012 alludes to individual ministerial responsibility (‘The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England’) and to broad constitutional principles, e.g. s. 1 of the Constitutional Reform Act 2005 refers to the principle of the rule of law.

Question 11

how is statutory interpretation related to the constitution?

Answer 11

Making definitive rulings on the meaning of provisions in Acts of Parliament and other legislation
Orthodox starting point: judges are seeking to find and give effect to ‘the intention of Parliament’ as expressed in the words of the Act in question

Question 12

what is the significance of Pepper (HM Inspector of Taxes) v Hart (1993) AC 593?

Answer 12

Landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege

Question 13

what are the facts of Pepper v Hart?

Answer 13

Hart and nine others were teachers at Malvern College, where from 1983 to 1986 they took advantage of a “concessionary fee” scheme, which allowed their children to be educated at rates one fifth of those paid by other pupils. They disputed the amount of tax they had to pay under the 1976 Finance Act, Section 63 of which said that:

The cash equivalent of any benefit chargeable to tax … is an amount equal to the cost equivalent of the benefit, less so much (if any) of it as is made good by the employee to those providing the benefit … the cost of a benefit is the amount of any expense incurred in or in connection with its provision, and (here and in those subsections) includes a proper proportion of any expense”.

The Inland Revenue, attempting to tax this benefit, argued that the “cost” of the benefit meant an average of the cost of providing it; if there were 100 pupils at a school that cost £1,000,000 a year to run, the “cost” per pupil was £10,000. Hart and his fellow teachers disputed this and argued that it was instead marginal cost, saying that other than food, stationery, laundry and similar there was no cost to the school due to the children’s presence that would not be there already.

Question 14

what is meant by the ‘principle of legality’?

Answer 14

an Act of Parliament will not be interpreted as depriving people of common law rights except by the clearest words

• R v Secretary of State for Home Department ex parte Pierson (1998) Lord Hope “ unfairness …… as there are no statutory rules, the presumption must be that he [Secretary of State] will exercise his powers in a manner which is fair in all the circumstances.”

Question 15

what are the most significant features of the common law tradition?

Answer 15

1. No designated constitutional court separate from the main court system
2. Judges not only apply rules but generate them independently of Parliament through the application of precedent (vs being confined to interpreting and applying a codified set of rules)
3. Longer style of judgments containing more justification for the rulings
4. Use of obiter dicta to discuss important constitutional principles (e.g. Entick v Carrington)

Question 16

what is meant by ‘judicial review’?

Answer 16

Courts have enunciated grounds of review that may be used to question the legality of decisions by public bodies and delegated legislation

Question 17

what is the orthodox position on judicial review?

Answer 17

that the body of case law embodies fundamental values of the constitution and, in extreme situations, judges would have the constitutional duty to set aside an Act of Parliament that undermined democracy or people’s basic rights in some profound way

Question 18

what is sir john law’s view (in “law and democracy” 1995) on judicial review?

Answer 18

runs contrary to orthordox position

1. Argues effective rights can only be accorded by means of compulsory law
2. Medium of rights will then be the power of rule, which (if misused) can subvert rights
3. From this, it is a natural conclusion that the constitution must guarantee by positive law such rights as that of freedom of expression as its credentials as a medium of honest rules will be undermined otherwise
4. But this requires an appeal to a “higher-order law” which “cannot be abrogated as other laws can” by the passage of a statute promoted by a government with the necessary majority in Parliament (ensuring legitimacy?)

Question 19

what are constitutional conventions?

Answer 19

“Rules of constitutional practice that are regarded as binding in operation but not in law”

Question 20

how does one identify rules in constitutional conventions?

Answer 20

Sir Ivor Jennings, The Law and the Constitution” (1959)

• “The fact that an authority has always behaved in a certain way is not warrant for saying that it ought to behave in that way, but if the authority itself and those connected with it believe they ought to do so, then the convention exists” –> customary law
• 3 part test
  
  1. What are the precedents?
  2. Did the actors in the precedents believe they were bound by the rule?
  3. Is there a good reason for the rule

Question 21

are conventions different from laws?

Answer 21

Dicey, “Introduction to the Study of the Law of the Constitution (1885)

Laws ‘in the strictest sense’ vs constitutional conventions: role of the courts in relation to enforcement of failures to comply with the rules differ

Question 22

is it helpful/possible to draw a distinction between laws and conventions?

Answer 22

• Jennings
  
  • “there is not distinction of substance or nature”, though it “is important from the technical angle”
• Barber, ‘Laws and constitutional conventions’ (2009)
  
  • Difference is one of degree – spectrum gradated in terms of the formalization of rules
  • “Conventions can become laws through judicial intervention, and conventions can ‘crystallise’ into laws over time by becoming increasingly formalized”
  • E.g. Ministerial Code

Question 23

what is dicey’s and jenning’s veiw on enforcement of conventions?

Answer 23

1. Dicey: courts would not enforce compliance directly, but violation of conventions leads inexorably to breach of the law (which courts can enforce)
2. Jennings: many instances proving otherwise – there are circumstances in which the courts can, and should, be prepared to enforce constitutional rules directly

Question 24

why did Allan feel that the orthodox position on conventions should be challenged?

Answer 24

it obscures the important sense in which constitutional morality is an important sense of law

Background: Federal Government of Canada wanted to repatriate the Canadian constitution, and the basis of the constitution was an Act of the UK Parliament. Those opposed to the change argued that any amendment to the constitutional system couldn’t occur without the consent of the provinces of Canada

• Majority of the court accepted there was such a convention but held that the powers of the the two Canadian Houses of Parliament were unlimited as a matter of law
• Argued that there is no reason why legal remedies shouldn’t be granted in favour of convention grounded firmly in principle
  
  • Authority: Attorney-General v Jonathan Cape Ltd (1976) QB 752
  • Distinction between source of law (as law) and source of law governing interpretation of statute/influencing development
  • Dichotomising it neglects the sense in which recognition of convention by the courts has a normative aspect, and imports an application of political principle
  • Therefore the traditional orthodoxy should be challenged as it obscures the important sense in which constitutional morality is an important sense of law

Question 25

what are concordats?

Answer 25

‘memoranda of understanding’ /principles governing relationship between/among different parts of the government system – political in character, not meant to be enforceanle by the courts

Question 26

what is the context in which concordats emerged?

Answer 26

the government’s plan to abolish the office of Lord Chancellor so that the Lord Chief Justice would now be the head of the judiciary

Question 27

what were Rawlings’ and the House of Lords’ comments about concordats?

Answer 27

Rawlings, ‘Concordats of the Constitution’ (2000)

• Calls them ‘pseudo-contracts’ and a soft law technique
• Far more specific and detailed than the old style constitutional convention (so it’s like an evolution of sorts)

House of Lords Constitution Committee, Relations between the Executive, the Judiciary and Parliament, 6th Report (2006-2007)

• “of great constitutional importance”
• Sets out principles “that matters rather than precise detailed legislation”

Question 28

what are codes?

Answer 28

not the subject of negotiation between different institutions/office-holders (unlike concordats) but rather they are published by one part of government

Question 29

what are the features of westminster constitutionalism?

Answer 29

• Government is drawn from the House of Commons (vis-à-vis presidential system)
• Parliament is at the pinnacle of the constitutional system
  
  • Has unlimited legislative competence
• There are effective systems for ensuring that ministers are politically accountable to Parliament between elections

Question 30

how would one explain westminster constitutionalism?

Answer 30

Explanation (as set out in “The House of Lords: Completing the Reform – A Government White Paper Presented to Parliament by the Prime Minister by Command of Her Majesty”, 2001)

• UK is a Parliamentary democracy
• Sovereignty rests with the Crown
• Law making rests with the tripartite sovereignty of the Crown in both Houses in principle
• But in practice the powers are uneven
  
  • Crown/Executive has increasingly become accountable to Parliament for its exercise of powers
  • Within Parliament, power has transferred from the Lords to the Commons
  • Commons had asserted the sole right to grant or withhold supply from as far back as the 15th century based on its position as the representative body of the people
  • 1832 Reform Act increased the authority of the Commons
  • UK political system built around principle – “whom do you choose to govern you?”
• Flexibility allows for the accommodation of alternative arrangements e.g. coalition government (2010 Conservative-LibDem is the most recent)

Question 31

what principle does westminster constitutionalism uphold?

Answer 31

accountability

Le Sueur, “Accountability”

• Requires public authorities to explain their actions and be subject to scrutiny
• May entail sanctions e.g. resignation from office or censure
• Effective accountability depends on a commitment to open government and rights to freedom of information
• News media and pressure groups play vital roles in ensuring accountability is achieved

Question 32

how is accountability achieved?

Answer 32

• Elections
  
  • But these can only provide periodic and partial opportunities because much public sector activity is carried out by unelected officials and appointees
• Courts
  
  • Judicial review procedures
  • But – quis custodiet ipsos custodies? (‘who will watch the watchmen’) – principle of judicial independence prevents judges from being held to account for their decisions?

Question 33

what are the problems with the westminster model?

Answer 33

Parliament is controlled by the government, instead of it being the other way round

• Government has exclusive use of the legislative procedures to steer through legislation it has drafted
• Problematic because there’s no check and balance on the powers of government now/problems of legitimacy arise?

Role of PM and Cabinet appears to have shifted – eras in which there are collaborative approaches (e.g. Cameron), and those in which Cabinet had more influence over government decision-making (e.g. Gordon-Brown)

• No clear defined scope/runs the risk of overstepping boundaries?

Rise of delegated legislation

• Since delegated legislation is made by ministers rather than Acts of Parliament, how far is it still true that elected representatives are actually at the heart of the legislative process?

Multilevel governing

• UK Parliament and government are no longer the sole legislative and executive body as a result of EU membership
• Devolution of powers to new institutions in Scotland, Wales and Northern Ireland (began in 1998)

Rise of the power of judges

• Judges in the ECtHR and Court of Justice in the European Union now have power/influence over the development of public policy in the fields of law over which they have jurisdiction
• British judges also have used their powers to develop the common law to create a modern system of judicial review of executive action and delegated legislation
• Again, no clear separation of powers

Lack of confidence in the institution as a whole

• But isn’t this problem not exclusive to the Westminster model anyway?

Question 34

what are the proposals for reviving the system?

Answer 34

Attempt to reinvigorate the Westminster system

• E.g. create a ‘parallel chamber’ in Westminster Hall to allow more time for debates on issues raised by select committees, publishing some Bills in draft form in advance, reforms to the legislative process, the Constitutional Reform and Governance Act 2010 which gives the UK Parliament a more 
formal role in relation to scrutiny of treaty-making.
• Could these changes be merely cosmetic, however?

Create opportunities for people to participate more directly in government decision-making

• E.g. Labour’s manifesto in the 2007 Green Paper – formation of citizen ‘s juries to discuss issues, Coalition government’s policies/slogans like ‘Localism’ and ‘the Big Society’
• Localism Act 2011 – confer a ‘general power of competence’ to local authorities
• Bogdanor, “The New British Constitution” (2009)
  
  • Argues there needs to be greater emphasis on the need for the public to participate in government – “The real achievement of constitutional reform is to have redistributed power, but it has redistributed power between elites, not between elites and the people.”
  • Further argues that it is now easier for the power of government to be made subject to constitutional control so that the system is much less of a dictatorship now
  • Solution: a new style of participative democracy in which ‘the people are able both to make more decisions for themselves and also more effectively control decisions made by those in government”
  • Favours ‘open primary elections’ run by political parties – a step preceding the official election contest for seats in the House of Commons/other elected bodies
  • Referendums
  • But direct democracy has its own problems too – Ministry of Justice in “A National Framework for Greater Citizen Engagement” (2008)
  • Can reduce complex national policy decisions to simple choices
  • Manipulation by the wealthy and powerful

Embrace a more ‘legal’ constitution in which judges will have a greater role

• Definition by Sir Christopher Foster in “British Government in Crisis (2005)
• “One where some constitutional conventions are replaced by laws—as well as some poor constitutional laws by better laws—so that our constitutional arrangements are clearer and, when necessary, legally enforceable.”
• However, he views this as an unattractive way forward

Disintegration of the UK as a single nation state

Disengagement from the process of European interaction

Question 35

why doesn’t the UK have a written constitution?

Answer 35

Historical

• Codified constitutions are typically enacted to mark a new beginning e.g. when states attain freedom (be it from an external ruler or old regime) à constitution marks occasion when state is constituted
• But Britain hasn’t had such an obvious break in constitutional development unlike other countries/regimes
• Can be said to have begun in 1707 when the Acts of Union between England and Scotland created state of GB
• But even though a new Parliament was created it merely inherited all the characteristics of the old one
• So the real reason can be attributed to the lack of a genuine ‘constitutional moment’
• Emphasis on evolutionary adaptability strengthened by Great Reform Act of 1832
• Seemed to show that the British constitution developed through evolutionary processes
• Act also reinforced supremacy and centrality of Parliament
• Macaulay: “that the means of effecting every improvement which the constitution requires may be found within the constitution itself”
• Resulted in Dicey and Bagehot seeing the supremacy of Parliament as lying at the heart of the evolutionary British constitution
• Dicey: British constitution is a ‘historic’ one

Conceptual

• Fundamental principle – that Parliament is sovereign (i.e. that Parliament can legislate as it chooses and that there can be no superior authority to Parliament)
• So essentially “what the Queen in Parliament [enacts] is law”
• But if this is so, (Robinson’s assertion here) then there is no point in having a codified constitution because the purpose of a constitution is to limit the power of the legislature
• Tocqueville: “the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and constituent assembly”
• Anthony Trollope in his novel, “The Prime Minister” – Duchess of Omnium declares that “Anything is constitutional, or anything is unconstitutional just as you choose to look at it”