Constitutional Law Revision Book Flashcards
Why have a constitution?
- A state’s constitution should define parameters of state power and place legitimate limitations on the power of government.
- Limitations include the ‘rule of law’ and the ‘separation of powers’.
- Without such limitations government is likely to be undemocratic.
Montevideo Convention on Rights and Duties of States defines a state as in possession of the following qualifications:
a. a permanent population
b. a defined territory
c. government
d. capacity to enter into relations with other states
Legislature
- Body that enacts new law and modifies, repeals, or amends existing law. In the UK this is carried out by the ‘Queen in Parliament’, including the Monarch and both HoP.
- Legislatures are usually either bicameral, two-chamber such as UK and US, or unicameral, one-chamber, such as New Zealand.
Executive
- Body or bodies that formulate and implement policy within the law.
- In the UK the Executive is made up of the governement of the day inc. PM and the Cabinet; Civil Service and exec departments; agences and other public bodies, including local authorities.
Judiciary
- Body responsible for enforcement of law and adjudication of disputes between individuals, and also between individuals and the state. In UK represents all members of bench from magistrates and recorders to SC Justices.
Lord Bolingbroke definition of constitution
“that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system according to which the community hath agreed to be governed.”
Samuel Finer definition of constitution
“codes of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and offices of government and define the relationships between them and the public.”
Purpose of constitution
- Broadly speaking, to allocate power amongst various bodies that compose a state and between the state and its citizens.
- Can be argued constitution exists to ensure citizens are governed in accordance with democratic principles and that those who govern are legitimate, this is ‘constitutionalism’.
This principle suggests the limitation of powers, the separation of powers and the doctrine of responsible and accountable gov.
Sir Kenneth Wheare cited six broad characteristics of constitutions in Modern Constitutions
- Written/Unwritten - USA is an example of where written in single document. UK by comparison does not have a ‘traditional’ written constitution but rather one that has devolved over many centuries. A more useful distinction is differentiating between codified (single source) and uncodified.
- Rigid/flexible - rigid or ‘entrenched’ refers to the procedure of amendment, when entrenched constitutional law has a higher status. The US Constitution is one example of this, it is a heavily entrenched one. A flexible constitution means no special preocedure is required, as occurs in UK where can amend via simple majority.
- Supreme/Subordinate - supreme is where legislative powers of sovereign body are unlimited, if they are limited then it is subordinate. UK Parliament supreme law-making authority but EU membership raised some questions with this.
- Unitary/Federal - unitary constitution has majority of its legal and executive power vested in the central organs of the state. i.e. UK where most power is in Westminster or Whitehall but some is devolved. Federal constitution divides power between national government and states or regional authorities.
- Separated/Fused Powers - one of the principles of constitutionalism is that power should be divided to prevent abuse. The US con is a clear example of this, and the opposite would be a totalitarian regime where power is fused in that it is vested in one body. The UK con is more difficult to classify.
- Monarchical/Republican - monarchical is where head of state is a monarch, even if very limited role i.e. UK, Spain. Republican is where the head of state is democratically elected i.e. the President. Their role can be more symbolic, as it is in Germany/Ireland, or highly powerful, as it is in France/the US.
Legal sources of constitutional law - legislation
- Acts of Parliament = primary source of constitutional law
- until recent years all statute recognised as of same importance, however now some have special constitutional status
Legal sources of constitutional law - Royal Prerogative
- Dicey: ‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’.
- comprises all privileges and immunities recognised at common law as belonging to the Crown
- i.e. prerogative of mercy and prerogative on signing treaties and declaration of war
Legal sources of constitutional law - Judicial Precedent
- Many principles originated from decisions of courts
- Entick v Carrington: establishing civil liberties
- Stockdale v Hansard: libel and parliamentary privilege
- GCHQ - how prerogative power is exercised by government could be subject to judicial review
- Factortame - changed EC law and UK law relationship
- A and Others - HoL quashed derogation order
EU Law
- EC law became source of constitutional law in the UK following the enactment of the European Communities Act.
Non-legal sources: constitutional conventions
- General characteristics: informal rules of political practice, usually develop in an evolutionary way, do not have a clear source in legislation which makes their scope unclear.
- Jennings created a three stage test to identify a convention
- i.e. the Queen, as head of state, has the legal right to refuse royal assent to bills presented to her by Parliament. By convention she does not.
Dicey on constitutional conventions
- Argued they are merely descriptive rules of behaviour and are not binding in law
- Dicey identified a different set of rules consisting of ‘conventions, understandings, habits, or practices which, though they may regulate the conduct of officials are not in reality laws at all since they are not enforced by the courts.’
Jennings on constitutional conventions
Actual binding RULES of behaviour, albeit not legally enforceable.
Marshall and Moodie on constitutional conventions
‘rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution, but which are not enforced by the law courts… nor the presiding officers in the HoP’
Cabinet Manual on constitutional conventions
‘rules of constitutional practice that are regarded as binding in operation but not in law’
Conventions relating to the legislature
- Salisbury Convention: HoL should defer to HoC - particularly when bill promoting election manifesto commitment is being proposed
- Financial bills - only introduced in HoC and then by Cabinet minister
- all parliamentary committees should reflect each party’s relative strength in the HoC
- MPs have access to the Crown through the Speaker
- new ‘War Powers’ convention - requirement for HoC action. Emerged post-Iraq.
Conventions relating to the Executive
- the monarch should act in accordance with the advice provided by her ministers
- the monarch should not exercise her legal right to refuse to give ‘Royal Assent’ to bills passed through Parliament
- the monarch should appoint the leader of the political party
- the PM chooses the Cabinet
- the PM and Chancellor should be members of HoC
- Ministerial responsibility
- resignation post V.O.N.C.
- monarch should be asked for Royal Consent before bills affecting personal interests of monarchy are brought
Conventions relating to judiciary
- judges should not be politically active
- judge’s professional conduct should not be criticised in Parliament except on motion of dismissal
Convention relating to Commonwealth and to devolved govs within the UK
- Governor-General should not be appointed by Queen unless taken from country
- UK Parliament should not legislate for independent Commonwealth nation unless requested to it
- Sewel Convention - UK will not normally legislate on devolved matters in Scotland without consent of Scottish Parliament
Purpose/rationale of conventions
- flexible means to change and develop constitution informally. As Jennings says, they ‘fill in the gaps’.
- define and modify legal powers, regulate authority of Crown and underpin operation of Cabinet system.
- regulate internal relations between HoL and C
- regulate relations between UK and Commonwealth
- help to control and provide accountability of the Executive
Courts and Conventions
- prepared to recognise conventions but not enforce them
- when conflict between convention and law courts must follow law
Attorney General v Jonathan Cape (1976)
- courts cannot enforce convention directly but certain situations where enforceable legal right that governs same territory or area of principle
Mazimbamuto v Lardner-Burke
- decide whether Southern Rhodesia Act should take priority over a convention
- Privy Council held UK statute took priority and was valid even though contradicted spirit of existing convention
HM Treasury v Information Commissioner
- practice of not disclosing content of advice given to government by its lawyers without their consent was challenged in request under Freedom of Information Act
- Treasury successfully challenged decision to allow disclosure, outlining long-standing convention for governments to obtain effective and independent legal advice, unaffected by external, political pressures
- Court ultimately found in reference to act but recognised importance of convention, refusing to displace it
R (Evans) v Attorney-General (2015)
- intriguing dispute on role of constitutional conventions
- government’s view was that convention relating to ‘education in business of government’ would be undermined if allowed request of journalist Rob Evans for disclosure of Prince’s correspondence with various government ministers
- Evans argued in public interest to understand Charles’s advocacy
- when case reached SC, AG’s attempt to override order for disclosure was quashed
R (Miller) v Sec of State for Exiting EU (2017)
- one argument was based on Sewel Convention, a convention now within Scotland Act: argued statutory recognition given to convention created legal obligation on UK to seek consent of SP before 50 triggered.
- SC rejected this view, found section in act merely functioned as acknowledgement of convention as opposed to new legal rule/obligation
