Constitutional fundamentals and sources of the constitution Flashcards
What is a constitution?
Constitutions are used in many types of organisation (for example political parties, clubs and societies) to establish the fundamental rules and principles by which the organisation is governed
A political constitution deals with the entire organisation of a state and how its legal order is established
Classifying constitutions: How are constitutions classified?
Written - A state with a written or codified constitution will have its constitution set out in a single document
Unwritten (UK) - A state with an unwritten or uncodified constitution will not have its constitution set out in a single authoritative document. Rather the constitution will be made up of a number of different sources, such as statute and case law.
Republican - A state with a republican constitution will usually have a president (often elected directly or indirectly) as its head of state.
Monarchial (UK) - A state with a monarchical constitution will have an unelected monarch as head of state (although the monarch’s role may be largely ceremonial)
Federal - A state with a federal constitution will have a division of power between the central government and regional government.
Unitary (UK) - A state with a unitary constitution will have a single sovereign legislative body, with power being concentrated at the centre.
Rigid - A state that has a rigid constitution has a constitution that is said to be ‘entrenched’. This means that the constitution may be changed only by following a special procedure. Most states with written constitutions tend to be rigid
Flexible (UK) - A state that has a flexible constitution has a constitution that is comparatively easy to change because no special procedures are necessary for the constitution to be amended.
Formal separation of powers - A state that has a formal separation of powers has a clear separation both of functions and of personnel between the executive (ie the government), the legislative (ie the parliament) and the judicial (ie the courts) branches of stat
Informal separation of powers (UK) - A state that has an informal separation of powers is likely to have a significant degree of overlap in terms of functions and personnel between the executive, the legislative and the judicial branches of state.
Core constitution principles of the UK
The rule of law, the separation of powers and the sovereignty of Parliament
The rule of law
- There should be no arbitrary exercise of power by the state or government – all actions of the state or government must be permitted by the law.
- Laws should be made properly, following a set procedure.
- Laws should be clear – laws should be set out clearly and be accessible, and a citizen should be punished only for a clearly defined breach of the law.
- Laws should be certain – laws should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time they carried out that act.
- There should be equality before the law – all citizens should have equal access to the legal process for the redress of grievances, and the law should treat all persons in the same way (for example, the law should not provide special exemptions or ‘get-outs’ for government officials).
- The judiciary should be independent and impartial – the courts should be sufficiently independent from the legislature and the executive so that judges can uphold the law without fear of repercussions from the other branches of state.
The separation of powers
Its essence is that there are three
branches of government:
(a) the legislature (or parliament) – the body that makes the law. In the UK the legislature (Parliament) comprises the Monarch, the House of Lords and the House of Commons;
(b) the executive (or government) – the body that implements the law. In the UK the executive is made up of the Monarch, the Prime Minister and other government ministers, the civil service, and the members of the police and armed forces; and
(c) the judiciary (or courts) – the body that resolves disputes about the law. The judicial branch of state is made up of the Monarch, all legally qualified judges, and magistrates (non-legally qualified members of the public who deal with some criminal matters).
Sovereignty of Parliament
Parliamentary sovereignty (or supremacy) is a common law doctrine accepted by the judiciary, under which the courts acknowledge that legislation enacted by Parliament takes precedence over the common law.
Sources of the UK constitution: Acts of Parliament
Magna Carta 1925: It established the principle that no one is above the law and compelled King John to renounce certain rights, respect specified legal procedures and accept that his will could be bound by the law. It also introduced the right to protection from unlawful imprisonment.
Bill of rights 1689: Imposed limitations on the powers of the crown and its relationship with Parliament. It removed the power of the Monarch arbitrarily to suspend Acts of Parliament and the power of the Monarch to impose taxation without Parliament’s consent
Acts of Union 1706 - 07: These united England and Scotland under a single Parliament of Great Britain (the Parliament at Westminster).
Constitutional Reform Act 2005: This Act reformed the office of Lord Chancellor, transferring the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice and permitting the House of Lords to elect its own Speaker.
Case law: The common law
Residual freedom: It means that citizens are free to do or say whatever they wish unless the law (primarily expressed through Acts of Parliament) clearly states that such an action or statement is prohibited.
Actions of the state must have legal authority: It has also been established through the common law that actions taken by state officials (such as police officers) must have a legal basis if they are to be lawful.
Legal disputes should be resolved by the judiciary:
Habeas corpus and individual liberty: Although it is now strengthened by statute, the remedy of habeas corpus, whereby an individual who has been detained by the state has the right to have the legality of that detention tested before a court, developed originally through the common law.
Right to a fair hearing: Through the common law, the courts have repeatedly stressed the importance of the right to a fair hearing as a fundamental constitutional principle and an important part of the rule of law
Case law: Judicial review of executive actions
This is a mechanism that enables the courts to ensure that the Government and other public bodies exercise the powers that they have been granted in the proper way and so do not breach the rule of law.
Case law: The interpretation of statute
In addition to developing important constitutional principles through the common law, the judiciary have also made decisions of constitutional significance when interpreting statute law.
A noteworthy example of this is R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller (No 1)). In this case, the Supreme Court interpreted the ECA 1972 as preventing the Government from using the royal prerogative (see 1.4.3 below) as the legal basis for the notice of withdrawal from the EU
What is the royal prerogative?
Dicey definition of royal prerogative: The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown … Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative
The royal prerogative: principle areas
(a) Foreign affairs:
(i) declarations of war and the deployment of armed forces overseas;
(ii) making treaties; and
(iii) the recognition of foreign states.
(b) Domestic affairs:
(i) the summoning of Parliament;
(ii) the appointment and dismissal of the Prime Minister (and other government ministers);
(iii) the giving of Royal Assent to bills;
(iv) defence of the realm (ie the deployment of armed forces within the UK);
(v) the exercise of the prerogatives of pardon and mercy;
(vi) granting public honours; and
(vii) the setting up of public bodies to disburse funds made available by Parliament.
Although the Monarch is legally responsible for the exercise of the prerogative powers, most of these powers are by convention exercised by the Prime Minister and other government ministers on the Monarch’s behalf
The royal prerogative and statute
- Acts of Parliament can remove preorogative powers.
- This Act abolished
Constitutional conventions
These are non-legal sources of the constitution. Accordingly, the courts will not directly enforce them.
Definition by Marshall and Moodie may be broken down into three parts:
i)’rules of constitutional behavior’: ie how those who perform a role within the constitution should behave
ii) ‘considered to be binding’: ie there should be no deviation from these rules
iii) ‘not enforced’ – ie the rules have no legal basis and so will not be enforced by any judicial body
Important constitutional conventions
i) The Monarch plays no active role in matters of government, and the legal powers that are vested in the Monarch are exercised on her behalf by the elected government of the day
ii) The Monarch, acting on the advice of the Prime Minister, will not refuse Royal Assent to a bill that has been passed by the House of Commons and the House of Lords
iii) The Monarch will appoint as Prime Minister the person who is best able to command the confidence of the House of Commons.
iv) Government ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct. There must be no conflict of interest between a minister’s public duties and his or her private interests.
v)Collective cabinet responsibility. This constitutional convention has several aspects to it.
i) The cabinet is collectively responsible to Parliament
for the actions of the Government as a whole, and the G
government must retain the confidence of the House of
Commons
ii) The cabinet must be united in public in support of
government policy, and so a cabinet minister must
resign if he or she wishes to speak out in public against
such policy, as did Robin Cook in 2003, when he wished
to voice his opposition to the war in Iraq, and Boris
Johnson in July 2018 over Theresa May’s Brexit
policies.
iii) Cabinet discussions must remain secret.
vi)The unelected House of Lords will not reject legislation that gives effect to an important manifesto commitment of the democratically elected Government (the ‘Salisbury Convention’ )
vii) The UK Parliament will normally only legislate on a matter that has been devolved to the Scottish Parliament if the Scottish Parliament has given its consent (the ‘Sewel Convention’).
viii) Members of the judiciary do not play an active part in political life.
(ix) Ministers and Members of Parliament do not criticise in public individual members of the judiciary.
