Constitutional Law - Sources of Constitution 1

Question 1

What is a constitution?
Think book/collection of..

Answer 1

A system of government and the collection of rules that establish and regulate it.

Usually is it like a book that includes all the relevant government framework in that country (election procedure, bill of rights that protects bill of rights, structure of state, values important to the country)

Question 2

What are the main characteristics of the UK constitution?

UUUFM

Answer 2

The UK constitution outlines the powers of the branches of government and regulates the relationship between the state, it’s institutions and citizens.

It is:
1) Unwritten (it is made up of different sources of law, e.g. statute, case law)
2) Uncodified
3) Unitary (Parliament at Westminister is sovereign)
4) Flexible/Entrenched (may be changed only following a special procedure, but not rigid like a written constitution)
4) Monarchical (head of state is the King, who is unelected and by virtue of their position within the royal family)

Question 3

What are the 3 the core principles of the UK Constitution?

Think of 3 main ones Rule of..

Answer 3

1) Rule of Law
2) Separation of powers
3) Parliamentary sovereignty

Question 4

Explain the rule of law?

Answer 4

1) No arbitrary exercise of power by the state or government
2) Law should be made properly, following a set procedure
3) Law should be clear and accessible
4) Law should be certain
5) Equality before the law
6) Judiciary should be independent and impartial

Question 5

What is the separation of powers?

3 Different types of Powers

Answer 5

• Legislature (Parliament) makes the law.
• Executive (Government) implements the law
• Judiciary (Courts) - resolves disputes about law
• They maintain checks and balances on each other
• So that no one branch of state exerts excessive amount of power or influence

Parliament = Monarch, HoL, HoC
Executive = PM, Govt
Judiciary = Courts

Question 6

What is meant by parliamentary sovreignty?

Think who is the most powerful law making body

Answer 6

• Westminster Parliament is SUPREME law-making body.
• Parliament is sovreign, a Parlaimentary Act takes precedence over the common law
• Parliament can pass any law that it wants to

Question 7

What are the 4 sources of the UK constitution?

Answer 7

1) Acts of Parliament
2) Case law
3) Royal perogative
4) Constiutional convetions

Question 8

What are examples of the various statutes that Parliament has enacted?

Magna Carta..

Answer 8

1) Magna Carta 1215 (limited powers of monarchy)
2) Bill of rights - (removed monarchy power to suspend Acts of Parliament)
3) Acts of Union (united England and Scotland under a single Parlaiment of Great Britain)
4) Parlaiment Acts (relationship between HoL (unelected) and HoC (elected))
5) PACE (provides police with extensive powers of arrest, search and detention, safeguards so police doesn’t abuse powers)
6) HRA 1998 (incorporated ECHR into domest law, allows citizens to raise human right breaches before domestic courts)
7) Acts of Devolution (created a devolved government system -Scottish, Welsh and Northern Ireland have decentralised the process of government and given them greater autonomy)
8) Constiutional Reform Act (creation of supreme court and created the judicial appointments commission to oversee appointment of judges)
9) EU (Withdrawal) Act 2018 & EU Withdrawal Agreement 2020 - UK’s departure from the EU and repealed the ECA 1972 paved the way for the UK’s membership fo the European Union. Ended supremacy of the EU law and introduced to the UK legal system retained EU/assimilated law

These have simply been enacted in parliament in the same way as any other Act of Parliament / no special procedure or majority was required. These acts are not ‘entrenched’ and can be repealed by an ordinary act of parliament.

Question 9

What is the benefit of having an unwritten, uncodified constiution?

Answer 9

• Easy to make changes to the constiution
• UK (Westminister) retains supreme power - sovreignty
• Government has freedom to act
• Tradition is respected
• Specific statutes to protect rights

Question 10

What is the difference between a federal constiution and a unitary constituon?

Answer 10

Federal - USA, each of the 50 states has its own government, the system of government is divided between a central goverment (White House) and regions, provinces or states

Unitary - A system of government which authority is given is centralised in the central government.

NOTE we do have devolved governments - but parlaiment is still sovreign and can override the wishes of the devolved countries

Question 11

What are examples of case (common law) that developed as core principle of our constitution?

Answer 11

1) Residual freedom - citizens are free to do or say whatever they wish unless an Act states that it is prohibited
2) Actions of the state (e.g. police officers) must have legal authority (Entick v Carringon) - no legal authority for the SoS to issue a general warrant for arrest and search of Entick who has been publishing seditious material’. The state officials could not act in an arbitrary manner and that the exercise of power by the state has to have clear legal authority
3) Legal disputes should be resolved by the judiciary (Case of Prohibitions) - concerned dispute over land, King sought to make a ruling. Court held that the Monarch has no power to decide legal matters by way of arbitrary rulings and that this should be resolved by the courts.
4) Habeas Corpus and Individual Liberty - strengthened by statute - remedy whereby an individual who has been detained by the state has the right to have the legality of that detention tested before the court.
5) Right to a fair hearing - Contained in Article 6 of ECHR, now forms part of the UK law following enactment in HRA 1998

Remember - UK Supreme court does not have the power to overrule unconstiutional laws

Question 12

What is the royal perorgative?

How does it work in practice?

Answer 12

• Monarch retains some remains of legal powers which enabled him to still have control over the country
• King has the power to summon, dissolve or prorogue (suspend) Parliament, declare war, deployment of armed forces overseas, give royal assent to bills
• Statutes are not binding on the crown unless the statute expressly states so OR if it binds the Crown by implication

However, in practice
- Parliament has the actual power to abolish the royal prerogative powers (e.g. fixed term parlaiment act)
- if Parliament decides to replace a prerogative power, the prerogative power is abolished and only the statutory power will exist

Note: if statute and prerogative powers overlap, statute will take PRECEDENCE and will RULE.
Prerogative powers cannot be used to change the law or the sources of law

Question 13

What are 5 types of prerogative powers?

Answer 13

1) Royal Prerogative Powers - crown’s powers and also a source of government power that is recognised at common law by the courts
2) Ministerial Prerogative Powers - power exercised by ministers on behalf of the crown - e.g. deploying troops, granting passports/pardons, acquiring territories, negogiating/ratifying treated.
3) Personal Prerogative Powers - powers that are personally exercised by the monarch - e.g. dismissing the government, appointing the PM, granting royal assent
4) Legislative Prerogative Powers - Powers of the Privy Council to pass orders of concil (statutory instruments)
5) Judicial Prerogative Powers - powers to hear appeals from commonwealth nations to the judicial committe of the privy council

Miscallenous prerogative powers
- right to mine precious minerals
- right to construct harbours
- right to claim ownership over any sturgeon/dolphin/whale/swans over parts of the River Thames

Question 14

Give an example of where statute took precedence over a prerogative power?

SoS plastic bullet to police case

Answer 14

R v SoS for Home Department v Northumbria Police Authority: SoS wanted to supply plastic bullets to local police forces, cutting out the police authorities. He issued circulars to the chief police officers to apply direct for stores if they antipated any problem with their local police authoirty
- Northumbria Police Authority argued that as the Police Act 1964 gave the police authorities the power to supply such equipment to police forces, statute conflicted with the prerogative power of the minister - so circulars were unlawful.

HELD by court - under the royal prerogative the SoS has the power to maintain the Queen’s Peace and to keep law and order. Statutory power can co-exist side to side with prerogative power but statute takes precedence.

Prerogative would only be reduced if inconsistent with the statutory powers

Question 15

What are constitutional conventions?

Answer 15

These are non-legal sources of the constitution.

a) Rules of constiutional behaviour - i.e. how those who perform a role within the constiution should behave
b) considered to be binding - i.e. there should be no deviation from these rules
c) not enforced - i.e. the rules have no legal basis and so will not be enforced by any judicial body

• As they are non-legal they do not require any particular step or procedure for their creation
• if a consitutional convention becomes obselete it can be dispensed without any formal steps being taken

Question 16

Give examples of legal rules of the constituion and how in practice their operation is affected by conventions?

Answer 16

Rule - Royal Assent is required for a bill to become a valid act. The monarch may refuse to give royal assent.
Convention: The monarch, on the advice of the PM always assents to a bill that is passed through paraliament

RuleThe monarch constitutes part of the executive branch of government
Convention: The monarch acts only on the advice of the PM and ministers, and in practice, most decisions are taken by the PM and other ministers themselves. Executive powers are exercised collectively and invidiaully responsible to Parlaiment

Rule: The Government is the ‘Monarch’s government’, and
they can therefore appoint and dismiss its members as they choose.
Convention: Monarch must appoint the PM (after a successful general election). Monarch must appoint and dismiss ministers on the adice of the PM.

Question 17

What are the important constituional conventions?

Answer 17

1) Monarch plays no active role in the matters of government. Legal powers vested in the Monarch are exercised on behalf of the elected government of the day.
2) Monarch, acting on advice of PM will not refuse to give Royal Assent to a bill that has been passed by the House of Commons
3) Monarch will appoint as PM the person who is best able to command the confidence of the HoC
4) All government ministers will be members of either the HoC or HoL and PM should be a member of a democratically elected HoC and not an unelected HoL
5) Individual ministerial responsibility - government ministers are responsible to Parliament for running and proper administration of their respective departments and for professional conduct. If they breach this - they should RESIGN (e.g. Priti Patel resigned after conducting authorised meetings with Israeli officials)
6)Collective cabinet (or ministerial responsibility)

Question 18

What is collective (cabinet) ministerial responsibility?

Answer 18

1) Cabinet is collectively responsibile to Parliament for the actions of the Government as a whole - a government that is defeated in a vote of ‘confidence’ must resign
2) Cabinet must be united in public support of government policy- If they wish to speak openly about policy they must resign.

3) Cabinet discussions must remain secret
a) unelected HoL will not reject legislation that gives effect to an important manifesto commitment to the democratically elected government (salisbury convention)
b) UK Parliament will only legislate on a matter that has been devolved to the Scottish Parliament if the Scottish Parliament has given consent (sewel convention)
c) Members of the judiciary do not play an active part in political life
d) Ministers and Members of Parliament do not criticise in public individual members of the judiciary

Question 19

Is a convention legally enforceable?

Answer 19

No. it is not an act of parliament and so not legally enforceable.

People usually obey conventions because they think it is the right thing to do and so enforcement is not legally necessary.

Although, a lot of conventions have been officially written down and there can be disagreement about the existence of a convention.

Question 20

What is the 3 stage test of the existence of a convention?

Answer 20

Are there precedents?
1) Has this situation occured before and what happened?
2) Did the people involved think that there was a rule that compelled them to act that way?
3) Is there a reason for this rule, in other words does it fit in with the rest of the constiution?

Question 21

Why have conventions been developed?

Answer 21

1) To limit wide legal powers of the Monarch (it is undemocratic for the Kings decision to override elected PM)
2) To ensure that the Government is accountable to Parliament for its actions
3) Maintain separation of powers between the different branches of state

Individual ministerial responsibility - ministers do not abuse their powers and are held accountable
Collective cabinet responsibility - ensures that government as a whole must retain confidence of Parliament and can be held to account by Paraliment for its actions

These are actually held in a ministerial code - but it is not intended to have any legal effect but instead provide guidance to ministes and officials.

Question 22

Can the court enforce conventions?

Do they ever use conventions to influence their decision making?

Answer 22

No.

1) The court will not enforce them as they operate in politics NOT LAW.
- Including reference to the sewel convention in statute had NOT turned it into a legal rule. Depsite triggering Article 50 might breach the sewel convention - there would be no legal remedy as this is not law.

2)But they still acknowledge the existence of conventions
Carltona Ltd v Commissoners of Works
- Minister of Works had delegated emergency powers to requisition property to a civil servant. Owners of the factory said that the minister himself should have taken the decision. Court of Appeal recognised that under the convention of ministerial responsibility, the minister was accountable for Parliament for this decision.

3) Can influence the courts their judgements in other cases
R v Miller - where the convention of ministerial responsibility to Parliament was accepted as a vital part of the constituion. If the Prime Minister could prorogue (suspend) Parliament there would be no accountability. Therefore, the court concluded that there was no legal power under the prerogative to suspend Paraliment for over a month.

So they are not legally enforcable, no legal remedy but the court still thinks they have legal significance and acknowledges them.
Conventions consists of both laws and conventions.

Question 23

1) What is a convention?
2) When are they used?
3) Who are they used by?

Answer 23

1) Non-legal rules of the constiution
2) When there is no legal rules, or the legal rule is out of date
3) The King, government ministers, members of Parliament and civil servants.