PL 1.3 - Constitution Flashcards
John Stuart Mill
Considerations on Representative Government 1861
“the constitutional morality of the country”
“unwritten maxims of the Constitutional”
” the constitutional morality of the country mullifies powers’ such as that of the Crown to “refuse its assent to any Act of Parliament” or to “appoint to office and maintain in it any Ministor, in opposition to the remonstrations of Parliament”
Rules v Principles
Rules in the strict sense
Maxims are the equivalent of legal principles
Principles
“states a reason that argues in one direction, but does not necessitate a particular decision”
Constitution Conventions are becoming less frequently “unwritten”
Ministerial Code
Cabinet Manual
Constitutional Conventions are based on …
social practice to which written forms are largely irrelevant
Writings on British Constitutional conventions tend to focus on:
1) Why constitutional conventions are followed
2) Conflation of laws and constitutional conventions
Conflation of law and constitutional convention
Jennings - law and conventions are basically alike
Allan - Conventions are propertly enforceable in courts
Elliot - Conventions will be enforceable in courts
Mark Elliot
Transposition from constitutional convention to law likely
Historically done via statute
s1 of Parliament Act 1911 - delineating power of HoL in regard to Money Bills
Sewel Convention
Prior consent of the Scottish Government required before legislative intervention may take place
= Participation Clayse
Constitution
Colin Turpin
: ‘a body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the United Kingdom’
Constitution
Vernon Bogdanor
‘a code of rules which aspire to regulate the allocation of functions, powers and duties among the various agencies and officers of government, and defines the relationship between these and the public’
Principles of constitutionalism
- Exercise of gov power within legal limits and accountable to law
- Power should be dispersed beetween organisations of the state
- Government should be accountable to the people
Fundamental rights and freedoms of citizens to be protected.
UK Constitution - not design
Unplanned
Not the product of conflict/independence etc
Constitution
That set of rules that directly or indirectly affect the distribution and exercise of sovereign power in the state
Dicey 1885
Sovereign Power
Primary authority or ultimate power in a state.
Dicey’s description of the “distribution and exercise” of this power between organisations of the state.
Functions of state can be divided in three areas
Legislature
Executive
Judiciary
Legislature
*Body that enacts new law, and repeals/amends existing law
* King in Parliament, in practice the HoC and HoL
Executive
Formulate and implement policy within the law
PM and Cabinet
Gov Departments, and neutral Civil Service
Local authorities and councils
Judiciary
Judges of all levels
Enforcement of criminal and civil law
Adjudication of disputes
UK “set of rules”
Uncodified
Body of rules
Written and unwritten
Allocate and regulate the functions of the state
Rules come from a number of different sources
/Where do constitutional rules come from?
*Legislation
*Case Law
*Constitutional Conventions
Constitutional Legislation
Acts of Parliament = primary source
eg Magna Carta 1215, Bill of Rights 1689, HRA 1998
Thoburn v Sunderland City Council
2002
Laws LJ
“Constitutional Acts are those that
“1) conditions the legal relationship between the citizen and the state…..
2) enlarges/dimnishes the scope of what we would now regard as fundamental constitutional rights”
Entick V Carrington
Entick had home searched for sedition, he sued agents for trespass
L Camden, Chief Justice of the Common Please - found L Halifax had no recognized right under statute or case precedent to issue a search warrant
state cannot exercise power unless that power is expressly authorized by law
Constitutional Conventions
- Rules on the conduct of government
- Fall short of enforceable laws
- Informal rules
- Evolutionary development
- No clear source in legislation or case law
Flexibility in the constitution
UK Constitution is not codified, evolves
Act of Parliament -> sig change
Benefits of entrenched constitution
Certainty and greater constitutional stability.
Disability is the rigidity
Summary of UK constitution
- Uncodified, evolved, capacity to evolve.
- Constitutional rules <- legislation, case law and convention
- UK Constitution, lacks certainty but is flexible.
Consitutional Conventions as per Cabinet Manual
Cabinet Manual (1st edition, 2011)
“rules of constitutional practice are regarded as binding in operation but not law”
Cabinet Manual
Guide to laws, conventions and rules on the operation of government.
Why are conventions useful
- Flexible way of filling in the gaps.
- Develop to reflect contemporary constitutional values.
- Regulate relationships between state institutions, create standards of behaviour
- Underpin Cabinet system, regulate relations
Constitutional Conscience
If there is inconsistency between law and convention….
Law will prevail
Conventions relating to the legislature
- HoL defer to HoC
- HoL shall not reject a 2nd reading of any gov legislation passed by HoC & carrying out a manifesto commitment (Salisbury-Addison Convention)
- Financial Bills introduced only by Cabinet Minister to HoC
- Westminster will not normally legislate over devolved matters without consent Sewel Convention.
- HoC consulted before gov embarks on any major foreign policy intiative utilising armed forces
Sewel Convention
Salisbury-Addison Convention
Armed intervention
Following parliamentary vote on military engagement in Syria in 2013
Building on 2003 vote on Iraq
New convention has emerged
HoC consulted before major foreign policy initiative involving deployment of armed forces.
Conventions related to the Executive - Monarch
- Monarch acts in accordance with advice from Minister re proroguing parliament
- Monarch will not refuse royal assent
- Monarch will appoint PM as leader of the political party commanding confidence of HoC
- Monarch must be asked for consent re: legislation affecting interests of the monrachy
Conventions related to the Executive - Cabinet
- PM Chooses Cabinet Ministers
- PM and Chancellor of Exchequer should be MPs
- Vote of no confidence by HoC, the government will resign. PM will advise the monarch to disolve Parliament –> general election
Fixed term Parliaments Act 2011
Conventions relating to the judiciary
- not politically active (risk of judicial bias)
- parliament must not criticise professional conduct of judges
Executive criticises the Judiciary
Boris Johnson, gave his view as PM in Sept 2019 that the SC’s decision that BJ had unlawfully prorogued Parliament was wrong
He arguably breached convention, and slighted the principles of separation of powers and rule of law
Conventions are not matters of law…
but are broader rules of political and institutional morality.
They cannot be legally enforced.
Courts will recognize them and acknowledge their significance as part of a broader set of rules
R (Miller) v SoS for Exiting the EU [2017]
- Scotland
SC rejected the argument the gov was bound to seek consent of the Scottish Parliament before triggering Article 50 (therefore UK’s exit from the EU).
- Sewel Conv since 2016, has been referred to in s28(8) of the Scotland Act; but this is acknowledgement of a convention - not a new rule with any legal force.
Summary of conventions
- Conventions promote constitutional standards and principles. They are uncodified
- Law may be enforced, Conv cannot be.
- HoL must defer to the HoC
- Conventions relating to the exec include that the Monarch follows Ministerial advice.
- judiciary are not politically active.
- Courts recognize conve, but cannot enforce them
- Ramifications of breach are political not legal.
Parliament
Supreme Legislative body
Consists of two Houses, under and within the symbolic power of the King
King in Parliament
Sovereign in his legislative role, acting with the advice and consent of Parliament
HoC - representative elected body of 650 members
HoL - unelected body of life peers, hereditary peers and bishops
Function of Parliament
- Debate and scrutinse legislation
- Propose amendments
- Extract info from Exec; hold Exec to account
- Scrutinise public expenditure and taxation
What do MPs do?
Divide time between HoC, political party and their constituency
s 4 of the Dissolution and Calling of Parliament Act 2022
Parliament will automatically dissolve after a five year period
General Election can be triggered:
- Request from PM for Monarch to exercise prerogative power to dissolve Parliament = Tactical dissolution
- Following a “vote of no confidence”
Overall Majority
means that the number of seats won by the winning party is more than the combined number of seats for all other parties in the new Parliament
Hung Parliament
No single party wins a majority of seats
Minority government
Biggest party can form a minority gov or enter a coalition with another party in order to create an overall majority
Prime Minister
Monarch’s Principal Adviser
Chairs Cabinet
Has overall responsibility for the policy and operation of the government
Speaker of the House
Manage and control the direction and tone of debate.
Speaker must by politically impartial - but can still work as an MP
Full authority to enforce rules of behaviour in the HoC
Parliamentary Committees
Much of Parliamentary work consists of sitting on Committees made up of MPs and/or members of the HoL
Scrutinize the work of gov and examine proposals for primary and secondary legislation
Two types of Parliamentary Committee
Select Committee
Public Bill Committe
Select Committee
Permanent committees that investigate the work of indicidual government departments or broader policy areas
Public Bill Committees
Appointed to debate and emend proposals for new legislations
House of Lords
Nearly 800 unelected Peers
Inherited noble title or anyone made a peer “life peer”
Life peerages
Prerogative Power
On Advice of the PM
1999 House of Lords Act
Reduced the number of hereditary peers who may sit and vote in the House to 91.
Remainder of life peers or bishops
Crossbench peers
Constitutional Reform Act 2005
- House of Lords (Law Lords); 12 judges appointed as members
- Appellate Committe of the House of Lords
2009
House of Lords’ judicial function was formally transferred to the UKSC
Law Lords became first Justices of the Supreme Court
Function of House of Lords
Scrutines and make amendments to legislation
Regulated by conventions
Government defeats in the HoL
Result in amendments to the legislation rather than wholesale defeat
Parliament is ….
the supreme legislative body of the UK.
Parliament can make or unmake any law
Parliamentary committees focus on…
different areas of government and hold ministers to account
Constitutional Reform Act 2005 led to ….
reorganisation of the HoL and establishment of the SC
The Executive
- The Monarch (symbolic and nominal)
- The PM and Cabinet (21 senior members)
- Government Departments
Powers of government departments are derived from….
Statute
Or common law
Royal prerogative today in practice means….
government exercise power without parliamentary approval
Accounting Officers
Responsible for preparation of department accounts - appointed by the Treasury
Government Resources and Accounts Act 2000
Allocation of funds…
Allocation of funds to government departments requires the approval of Parliament
Delegation of Power
Lawful exercise of power, granted to a minister by legislation or under common law, to a government official of lower rank working in the same department
Identified in a “scheme of delegation”
Actions of government departments are synonymous with the actions of the Minister in charge
Carltona Ltd v Commissioners of Works
1943
Carltona Ltd v Commissioners of Works
1943
L Greene (MR)
Functions are given to minsters are so multifarious that no responsible minister could properly attend to them …
Delegation required for the administration of public business
Limits on the power of the executive
If the government acts in excess of the powers it is given, the Administrative Court will intervene, not on its cown accord, but if a claim is started against the gov
Judicial Review
Legal mechanism by which individuals or groups who assert that the government has acted unlawfully in this way.
Constitutional Principles
The Gov and Ministers are subject to the following principles
- Laws may not be suspended
- Taxation
- Habeas Corpus
- Freedom from arrest
- Impeachement
Constitutional Principles:
Laws may not be suspended
Government may not suspend any law without the consent of Parliament (Bill of Rights s1)
Constitutional Principles: Taxation
All taxes require the consent of Parliament. They must be set out in legislation.
Constitutional Principles: Habeas Corpus
The restrictions imposed on the arbitrary imprisonment and punishment of citizens remain an important limitation on government power today and can be traced back in history (inc Magna Carta)
Constitutional Principles: Freedom from arrest
There are no longer any common law powers exercisable by the monarch or government ministers to issue warrants of search or arrest
Constitutional Principles:
Impeachment
Parliament can inquire into alleged illegal acts by ministers (though this power has seldom been exercised)
Local Government
County and District Councils
LA responsible for the implementation of central gov policies at the local level; as well as applying their own policies to
Exercise of local government power is reviewable by…
Exercise of local government power is reviewable by the Administrative Courts in the same way as Central Gov
Role of the Judiciary
- Determine outcome of legal disputes
- Decide the appropriate punishment in criminal cases
- Interpret the meaning of legislation
- Administrative Court - determine through judicial review whether the government has lawfully exercised its powers.
Judicial Review
The Administrative Court is where most public law claims begin.
Constitutional Reform Act was designed to…
Address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred.
Key changes of the Constitutional Reform Act (2005)
- Reformed the office of Lord Chancellor; judicial functions have largely been taken over by the Lord Chief Justice
- Established the Supreme Court, separate entity from the Appellate Committee of the House of Lords
- Created the Judicial Appointments Commission - prior to this the Monarch appointed judges on advice of the Lord Chancellor
The Lord Chancellor
Appointed by King on the advice of the PM
Responsible for the administration of the court system, also holds post of SoS for Justice.
Statutory Safeguards to prevent …. by Lord Chancellor over judicial decision making
Excessive influence
- LC has a legal duty to uphold the independence of the judiciary (s3(1) CRA 2005)
- LC must not seek to influence particular judicial decisions through any special access to the Judiciary
The Lord Chief Justice
Appointed by a special panel convened by the Judicial Appointments Commission
Made from the ranks of Court of Appeal judges
LCJ is Head of Judiciary of Eng and Wales, the President of Courts
Key Responsibilities of the LCJ
- Representing views of judiciary to Parliament and gov.
- Welfare, training and guidance of judiciary
- Deployment of judges and allocation of work in courts
Judiciary Constitutional Principles
When judges are “sworn in” they swear to oaths.
1) Allegiance to the sovereign
2) Judicial oath
- Judgment according to applicable law
- Impartial and independent judgement
Judicial Oath
“I will do right by all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”
All government powers are legally…
All government powers are legally finite, one of the courts’ key roles is determining where the boundaries of power lie
Cherry and Miller 2019
Supreme Court assessed the issue of justiciability
Court rejected the government’s argument that the prorogation of Parliament was a purely political one and not justiciable
Lady Hale
9th November 2016
“we the SC have definitely become the guardians of the UK constitution”
1) Rule on validity of laws passed by devolved legislatures
2) Restrict the gov to the exercise of powers within the limits Parliament has set 3) Protect fundamental rights of individuals against encroachment by the state
The constitutional role of the judiciary is to…
The constitutional role of the judiciary is to interpret the will of Parliament expressed in legislation, interpret and apply case law, and restrain unlawful acts including those of the Executive.
The Lord Chancellor’s role is to ….
administer the courts and tribunals system
The Lord Chief Justice has been the head of the judiciary since…
the CRA 2005
The concept of “justiciability”
Relates to the self limiting acknowledgment by the judiciary that purely political matters may be beyond its jurisdiction
UK Supreme Court
does not play a formal role as a constitutional court, but is arguably developing in that direction.
When was the UK formed
1801, the Acts of Union
Created the United Kingdom of Great Britain and Ireland
= England, Wale, Scotland and Ireland
England and Wales
Have been united for longer than other territories following the Laws in Wales Act of 1535 - 1542
Administration of Welsh territories was fully incorporated into the Kingdom of England.
Devolution
Grant by the UK Parliament of legislative powers to the devolved legislatures and administrations (executives)
Devolved legislatures/administrations
Scottish Parliament and Gov
Welsh Gov & Senedd
NI Assembly & Exec
Devolved Legislation
Legislation produced by the three devolved Parliaments or Assemblies.
Characteristics of Primary Legislation - but cannot be created without enabling powers of an Act of the UK Parliament
Devolved legislation in Scotland
Scotland Act 1998
Scotland Act 2016
Devolved legislation in Wales
Govt of Wales Act 1998 and 2006
Wales Act 2017
Devolved legislation in NI
Northern Ireland Acts 1998 and 2006
Devolved matters
Areas of government where decision making has been delegated by the UK Parliament to the relevant devolved administration.
Reserved Matters
Decisions still taken in Westminster
Fiscal policy and public expenditure
Responsibility for fiscal policy and public expenditure across the whole UK also belongs to HM Treasury
Why devolve
- Decentralize government power -> local understanding
- Importance of nationalist opinion
- Devolution introduced via public referendums in 1997 and 1998
Devolution in Scotland
Acts of Parliament extend to Scotland only if they deal with “reserved” matters
Section 28 (8)
Section 28(8) of the Scotland Act 1998
UK Parliament will “not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”
Legislative Consent Motion
Consent to legislate on a devolved matter is indicated by way of a LCM in the devolved Parliament
Section 28(8) represents a statutory recognition of…
Section 28(8) represents a statutory recognition of the Sewel Convention.
But it **does not give binding legal effect to it **
SC - Miller (no1) 2017
Miller (No1) 2017
The Sewel Convention, although recognised statutorily, is not enforceable.
As found by the Supreme Court.
Section 28(7) of the Scotland Act
The power of the Scottish Parliament
to pass Acts: ‘does not affect the power of the Parliament of the United Kingdom to make laws for
Scotland’.
A lack of consent from the devolved parliament can be overridden at Westminster.
Devolution of Wales
Not a separate legal jurisdiction from England.
The Wales Act 2017 extended the powers devolved to Wales under the Government of Wales Act
2006 (GOWA).
Schedule 7A
Schedule 7A of the GOWA 2006 lists the matters reserved to the UK Gov.
GOWA (s107(6))
Sewel Convention is reflected
s107(5) of GOWA
The power of Senedd “does not affect the power of the UK to make laws for Wales”
Devolution in Northern Ireland
Northern Ireland Act 1998.
Northern Ireland Assembly
Stormont
90 members democratically elected
Assembly selects ministers of the Northern Ireland Executive
Based on a power sharing model
s5(6) of Norther Ireland Act
Provides that the UK Parliament may still legislate on devolved matters without consent
Legislative conflict - role of the Supreme Court
Final court of appeal for civil cases,
Has jurisdiction under the various devolution Acts to resolve q’s relating to whether legislation by devolved administrations goes beyond the scope of their legislative competence.
National Security
A reserved matter across the devolved legislations
The legal effect of Acts of the UK Parliament/devolved legislation can be broken as:
- Which of the devolved administrations is in issue?
- What matter or area?
- Is the matter listed as a “reserved matter” in the relevant Act?
- Legislation passed by the UK Parliament will have legal effect?
- If the matter is not deemed as a “reserved matter”
Constitutional Role of the Monarch
No longer an absolute monarchy (where monarch has supreme authority), now have a Constitutional Monarchy (authority derives and is limited by the constitution & law)
Union of Crowns
between England and Scotland 1603
Since the Glorious Revolution
of 1688, the UK’s constitutional system has been evolved into being a constitutional monarchy
The Monarch’s current role
- Head of State
- law making power is King-in-Parliament
- Appoint PM, dissolve parliament, give royal assent
R
The Crown (Rex)
The Royal Prerogative
The powers historically vested in the monarch.
Not statutory powers - ie never created by Parliament.
These powers still form part of the legal authority of the executive.
Now powers only exercised on the advice of the PM
Remaining prerogative powers:
- Summoning, proroguing and dissolving Parliament
- Appointing and dismissing government ministers
- Mobilising the armed forces, including the declaration of war
- Negotiating treaties
Miller v the PM (2019)
Gina Miller and others brought a legal challenge to the advice given to the late Queen by the then Prime Minister, Boris Johnson, to prorogue Parliament.
monarch acts only o PM advice
Executive is not immune from challenge in courts
Supreme Court decision in Miller v PM 2019
SC decided that PM’s advice was unlawful because:
“had the effect of frustrating or preventing without reasonable justification the ability of Parliament to carry out its constitutional functions…. the effect upon the fundamentals of our democracy was extreme`”
