One - UK Constitution Characteristics Flashcards
Dicey defining constitution
‘That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state’
Defining constitution
- legal document setting out rules and structure of State
- statement of values and rights
- entrenched/flexible status
- formality varies
UK - a ‘political’ constitution
lack of written constitutional document: - no "Constitutional Court" - Marbury v Madison - absence of "entrenched" law - UK - parliamentary sovereignty Dangers and safeguards - rights protection? - political custom - democracy and "constitutionalism"
Development
- informal change/evolutionary development
- failed “written” constitutions - Instrument of Government 1653
- Post-Glorious Revolution (1688)
- pragmatic approach to change now constitutional, democratic monarchy with some key prerogative powers remaining
Lord Scarman, one advocate for the call to reform the constitution
“our constitution is not ‘unwritten’ but hidden and difficult to find… barely known to the public… the citizen lacks a constitution which he can read and understand and which enables him, if need be, to claim a right which he can enforce”
UK - reform and reaction
- Devolution - 1998 Acts - introduced significant constitutional change between England and S, NI, W and provided further mechanisms for jurisdictional disputes
- Human Rights Act 1998 - gives higher court control to judge whether acting within convention rights
- Constitutional Reform Act 2005 –> UK SC 2009 - enhanced status of higher judiciary
- Fixed Term Parliaments Act 2011 - led by Clegg, apart from fixed five year term little change
- sovereignty concerns/reaction i.e. EU referendum leading to Brexit. Similar feelings hinted elsewhere with calls, albeit limited, to repeal HRA.
Legal sources of constitutional rules
- legislation, case law, Royal Prerogative, EC law
Non-legal sources of constitutional rules
- conventions, practices, academic opinion
Legal sources: legislation
- Magna Carta 1215 - landmark, purely symbolic significance today but early attempt to regulate absolute power of monarchy
- Bill of Rights 1689 - its main function was to balance power of Crown and Parliament and established constitutional monarchy as well as concept of Parliamentary immunity
- Acts of Settlement 1701 - judicial independence: judges could not be dismissed if Crown did not like them
Other key statutes:
- Parliaments Acts 1911/1949 - determine where power lines in Parliament, HoC primary seat of legislative power
- Statute of Westminster 1931 - confirmed legislative independence of various dominion states: Irish Free State, Canada
- EC Act 1972
- Scotland Act 1998 - significant in degree of devolved power to Edinburgh
- HRA 1998 - affects relationship between citizens and state, enables citizens to challenge actions of national authorities
- Thoburn v Sunderland 2002 - Laws LJ recognised that some statutes have attained higher-status than everyday pieces of legislation
- constitutional statutes have higher importance… implications to how easily can be repealed
Common law
- subordinate to system of statute but can establish constitutional principles in own right
- judge-made law: reactive to events, based on system of precedent
- Entick v Carrington - legal authority needed for government power, when interfere when individual rights
- GCHQ - judicial review of exercise of prerogative powers - important in establishing key administrative law point that what is known as prerogative power is subject to judicial review by courts
Dicey’s description of Royal Prerogative
“the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown”
- residual that gives authority to gov to act in number of ways
- today exercised by PM in name of Queen
legislation: EU law
- R (Miller) v Sos Brexit
- primary: treaties
- secondary: regulations, directives
- ECJ decisions i.e. Factortame
Non-legal sources: conventions
- modes of political behaviour, the way things are done
- modify strict legal position, followed because feel obliged to follow, not because legally have to
- political stability, allow for flexibility and fluidity: Jennings said they “fill the gaps”, modify legal position BUT also mean uncertainty
- UK con: uncodified, not entrenched, “difficult to find” (Scarman”, shaped by conventional rules, arguably less political in nature than before
Examples:
- Royal Assent
- Parliamentary conventions i.e. Sewel Convention, votes on war
- selection of PM and ministers
- judicial impartiality
Dicey on conventions
“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 c
Jennings on conventions
- “the short explanation of constitutional conventions is that they provide the flesh which clothes the dry bones of the law”
- Law and the Constitution outlined three criteria:
1. look at precedents, 2. whether actors believe are bound, 3. constitutional reason - Amendment to Constitution of Canada
