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