Sources of the Constitution

Question 1

Magna Carta 1215

Answer 1

This has symbolic value as the first assertion of the limits on the powers of the monarch and of the rights of individuals.

Magna Carta was extracted from King John by his feudal lords and guaranteed certain rights to ‘freemen of the realm’, including trial by jury.

Magna Carta embodies the principle that government must be conducted according to the law and with the consent of the governed.

It established the principle that no man is above the law and compelled King John to renounce certain rights, respect specified legal procedures and accept that his will could be bound by the law.

It also introduced the right to protection from unlawful imprisonment.

Question 2

Bill of Rights 1689

Answer 2

This imposed limitations on the powers of the Crown (ie the monarch) and its relationship with Parliament.

The Bill of Rights removed the power of the monarch arbitrarily to suspend acts of Parliament and the power of the monarch to impose taxation without Parliament’s consent.

The Bill of Rights also provided that Parliament should meet on a regular basis, elections to Parliament should be free from interference by the monarch, and ‘freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.

Question 3

Act of Settlement 1701

Answer 3

This altered the rules of succession (by prohibiting Catholics from succeeding to the throne and giving precedence to male heirs) and established the constitutional independence of the judiciary (by providing security of tenure for senior judges).

However, the Succession to the Crown Act 2013 will remove the bar on the monarch marrying a Catholic and end succession to the Crown based on gender; it will come into force when all the other 15 Commonwealth countries which have the Queen as head of state have made their own domestic arrangements to the same effect.

Question 4

Acts of Union 1706-07

Answer 4

These united England and Scotland under a single Parliament of Great Britain (the Parliament at Westminster).

They also contained provisions to preserve the separate Scottish church and legal system.

Question 5

Parliament Acts 1911 and 1949

Answer 5

The Parliament Acts altered the relationship between the House of Lords and the House of Commons.

These Acts ensured that the will of the elected House of Commons would prevail over that of the unelected House of Lords by enabling legislation to be enacted without the consent of the House of Lords.

Question 6

European Communities Act 1972

Answer 6

European Union and incorporated EU law and EU legal systems into our domestic law. The Treaty establishing the European Community has been amended and renamed the Treaty on the Functioning of the European Union (TFEU).

Question 7

Police and Criminal Evidence Act 1984

Answer 7

This Act is relevant to civil liberties. It provides the police with extensive powers of arrest, search and detention, but also contains important procedural safeguards to ensure that the police do not abuse such powers

Question 8

Public Order Act 1986

Answer 8

This Act is also relevant to civil liberties. It allows limitations to be placed on the rights of citizens to hold marches and meetings in public places.

Question 9

Human Rights Act 1998

Answer 9

The Human Rights Act 1998 incorporates the European Convention on Human Rights into our domestic law. It marks a fundamental change in the protection of human rights by allowing citizens to raise alleged breaches of their human rights before domestic courts.

Question 10

Acts of devolution (eg Scotland Act 1998)

Answer 10

The Acts of devolution created a devolved system of government in various parts of the UK.

Acts establishing a Scottish Parliament and assemblies in Wales and Northern Ireland have decentralised the process of government and given greater autonomy to these parts of the UK.

Question 11

Constitutional Reform Act 2005

Answer 11

This Act reformed the office of Lord Chancellor, transferring the Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice and permitting the House of Lords to elect its own Speaker.

It also provided for the creation of a Supreme Court (to replace the Appellate Committee of the House of Lords) and created a new body (the Judicial Appointments Commission) to oversee the appointment of judges.

Question 12

Crown Proceedings Act 1947

Answer 12

This Act abolished the immunity which the Crown previously had in respect of claims against it both in tort and contract. Removing a prerogative power.

Question 13

Fixed-term Parliaments Act 2011

Answer 13

The Act provides for fixed days for polls for parliamentary general elections, and these will generally now be held every five years.

It removes the power the Queen formerly exercised under the Royal Prerogative to dissolve Parliament at a time of her choosing (by convention, the Queen would always dissolve Parliament when requested to do so by the Prime Minister).

Question 14

Constitutional Reform and Governance Act 2010

Answer 14

This curbed the exercise of prerogative powers to some extent. In particular, it removed the prerogative powers for the management of the civil service and put it on a statutory footing.

It also requires the Government to obtain parliamentary approval before it ratifies any international treaties.

Question 15

BBC v Johns [1965]

Answer 15

The BBC claimed that the Crown had a prerogative power to regulate broadcasting which manifested
itself in the BBC’s Royal Charter. As such, it argued that it was entitled to rely upon the Crown’s exemption from income tax (ie a widening of the Crown
exemption).

This argument was rejected, the court holding that the Crown could not extend the scope of the existing prerogative.

Question 16

Ghaidan v Godin-Mendoza [2004]

Answer 16

Under relevant housing legislation, the rights to a tenancy of residential premises could be inherited by the tenant’s surviving spouse, or by someone living with the tenant at his or her death as the tenant’s wife or husband.

The issue on appeal was whether this extended to the survivor of a same-sex couple who had been living together.

The Approach of Domestic Courts to Section 3 and how, therefore, the relevant provisions should be interpreted in the light of Article 8 of the ECHR (the right to respect for private and family life).

The House of Lords held that, when given its ordinary meaning, the housing legislation treated survivors of homosexual partnerships less favourably than survivors of heterosexual partnerships, without any rational or fair ground for such distinction, and this constituted a breach of the surviving partner’s rights under Article 8 of the Convention.

Accordingly the House of Lords used its power under s 3 of the Human Rights Act 1998 to read the housing legislation as extending to same-sex partners.

This took the provisions of the legislation much further than their literal meaning. The lead judgment was again given by Lord Steyn: Section 3 requires a broad approach concentrating … in a purposive way on the importance of the fundamental right involved.

Question 17

Entick v Carrington (1765)

Answer 17

Established the principle that state officials could not act in an arbitrary manner and that the exercise of power by the state had to have clear legal authority. Further the law did not provide state officials with any form of exemption or ‘get out’ from legal accountability for their actions.

The Secretary of State issued a general warrant for the arrest and search of Entick, who had allegedly been publishing ‘seditious material’.

The court found that there was no legal authority that enabled the Secretary of State to issue such general warrants, and that any authority for the lawful exercise of power by the state had to be found ‘in the [law] books. If it is not to be found there, it is not law’.

Question 18

Case of Prohibitions (Prohibitions del Roy) 1607

Answer 18

Established the principle - Legal disputes should be resolved by the judiciary One of the earliest examples of the common law setting out constitutionally important principles is the Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63. The case concerned a dispute over land which the King sought to settle by making a ruling. The court held that the monarch had no power to decide legal matters by way of arbitrary rulings, and that legal disputes should properly be resolved by the courts. Chief Justice Coke ruled that: … the King in his own person cannot judge any case … this ought to be determined in some Court of Justice … so that the Court gives the judgment. The resolution of legal disputes by the judiciary is another aspect of the rule of law.

Question 19

Belmarsh Case (2005)

Answer 19

The case involved a challenge to provisions in the Anti-terrorism, Crime and Security Act 2001 which permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.

The House of Lords (now the Supreme Court) held that such detention was unlawful and a breach of the European Convention on Human Rights (ECHR). The right to liberty is also contained in Article 5 of the ECHR, which now forms part of UK law following the enactment of the Human Rights Act 1998.

Question 20

Edinburgh & Dalkeith Railway Co v Wauchope (1842) and

Pickin v British Railways Board [1974]

Answer 20

The courts developed and then applied the common law ‘Enrolled Act’ rule which is at the centre of Parliamentary supremacy. The rule states that once an Act of Parliament has been entered onto the Parliamentary roll, the courts will not question the validity of that Act or hold the Act to be void.

Question 21

Madzimbamuto v Lardner-Burke (1965)

Answer 21

The white minority government of Southern Rhodesia issued a unilateral declaration of independence from Britain. However, the UK Parliament passed the Southern Rhodesia Act 1965, which declared that Southern Rhodesia remained part of the UK’s dominion territories.

The validity of the Act was challenged on the basis that there was an established constitutional convention that the UK Parliament would not legislate for Southern Rhodesia (now Zimbabwe) without the consent of the Rhodesian Government.

The Privy Council refused to enforce the convention and held that Parliament could pass legislation which ran contrary to an existing convention.

In his judgment, Lord Reid said: ‘Their Lordships in declaring the law are not concerned with [conventions] … They are concerned only with the legal powers of Parliament.’

Question 22

A-G v Jonathan Cape [1976]

Answer 22

The Attorney-General sought an injunction to restrain the publication of Richard Crossman’s book, The Diaries of a Cabinet Minister. Crossman had been in the Cabinet from 1964 to 1970, but publication did not come within the provisions of the Official Secrets Acts.

The Attorney-General sought, therefore, to rely on the constitutional convention of collective Cabinet responsibility as one of the principal grounds on which to restrain publication.

He argued that Crossman’s diaries divulged details of dissent within the Cabinet, thereby breaching the convention. Against this, it was argued that the convention imposed no obligation in law and the court could not restrain publication as no issues of national security were involved. The equitable doctrine of breach of confidence that a person should not profit from the wrongful publication of information received in confidence was also a powerful reinforcement of the Attorney-General’s arguments.

Principle - These cases demonstrate that whilst the courts recognise the existence of constitutional conventions, they are not prepared to enforce such conventions directly, but as the Jonathan Cape case shows, courts will recognise the existence of conventions, and conventions may indirectly give rise to legal obligations which the courts will enforce.

Question 23

R (Miller) v Secretary of State for Exiting the European Union [2017] or Miller 1

Answer 23

Principle - The Supreme Court has reaffirmed that the courts cannot enforce conventions.
The Court emphasised that this was because conventions operated in the political sphere alone. It also stated that including reference to the Sewel Convention in statute had not turned that Convention into a legal rule. Thus, despite the fact that triggering Article 50 may breach the Sewel Convention, there would be no legal remedy.

Question 24

Constitution

Answer 24

A constitution will usually define a state’s fundamental political principles, establish the framework of the government of the state, and guarantee certain rights and freedoms to the citizens.

The fundamental political principles of a state will be the key political ideas or doctrines on which the state is based.

The framework of government will set out the powers and duties of the executive, legislative and judicial branches of the state.

The rights and freedoms of citizens will be those basic rights and freedoms which it is agreed all citizens of the state should enjoy (for example, the right to free speech, or the right to vote in free elections).

Question 25

Rule of Law

Answer 25

There should be no arbitrary exercise of power by the state or government - all actions of the state or government must be permitted by the law.

Laws should be made properly, following a set procedure.

Laws should be clear - laws should be set out clearly and accessibly, and a citizen should be punished only for a clearly defined breach of the law.

Laws should be certain - laws should not operate retrospectively and a citizen should not be punished for an act that was not a crime at the time he carried out that act.

There should be equality before the law - all citizens should have equal access to the legal process for the redress of grievances, and the law should treat all persons in the same way (for example, the law should not provide special exemptions or ‘get-outs’ for government officials).

The judiciary should be independent and impartial - the courts should be sufficiently independent from the legislature and the executive so that judges can uphold the law without fear of repercussions from the other branches of state.

Question 26

Separation of powers doctrine

Answer 26

Writing in the 18th century, French philosopher Montesquieu said that to prevent arbitrary or oppressive government, the different branches of state had to be kept separate in terms of their functions and personnel.

He identified three different branches of state:

(a) the legislature (or parliament) - the body that makes the law;
(b) the executive (or government) - the body that implements the law; and
(c) the judiciary (or courts) - the body that resolves disputes about the law. As a result of the complex way in which modern states work, it is unrealistic for each branch of state to be kept completely separate from the others.

Most constitutions have therefore developed the concept of ‘checks and balances’. The idea behind this is that each branch of state is kept in check by powers given to the other branches, so that no one branch of state may exert an excessive amount of power or influence.

Question 27

Def of the exec, leg and jud

Answer 27

The executive branch of state in the UK is made up of the Queen, the Prime Minister and other government Ministers, the civil service, and the members of the police and armed forces.

The legislative branch of state is made up of the Queen, the House of Lords and the House of Commons.

The judicial branch of state is made up of the Queen, all legally-qualified judges, and magistrates (non-legally qualified members of the public who deal with some criminal matters).

Question 28

Sovereignty of Parliament

Answer 28

1. Dicey is saying that Parliament can pass whatever legislation it likes, thus it can introduce or repeal any law as it sees fit. So, in the often-quoted example, Parliament could, if it wished, ban smoking on the streets of Paris.
2. Dicey is saying that no other person or body can change or repeal legislation which Parliament has enacted. In particular, this means that the courts must uphold legislation passed by Parliament and cannot declare legislation to be unconstitutional. You might contrast this with the position in the USA, where the Supreme Court can strike down an Act of Congress as being unconstitutional.

Question 29

Royal Prerogative

Answer 29

Dicey defined the Royal Prerogative as follows … the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown … Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative. (An Introduction to the Study of the Law of the Constitution, 1885)

Prerogative powers derive from the common law and are exercised by (or in the name of) the monarch. The Royal Prerogative is essentially what remains of the absolute powers which at one time were exercised by the monarch and which have not been removed by Parliament.

Question 30

Prerogative powers - foreign

Answer 30

Foreign affairs:

(i) declarations of war and the deployment of armed forces overseas;
(ii) making treaties;
(iii) the recognition of foreign states.

Question 31

Prerogative powers - domestic

Answer 31

Domestic affairs:

(i) the summoning of Parliament;
(ii) the appointment and dismissal of the Prime Minister (and other government Ministers);
(iii) the giving of Royal Assent to bills;
(iv) defence of the realm (ie the deployment of armed forces within the UK);
(v) the exercise of the prerogatives of pardon and mercy;
(vi) granting public honours.

Question 32

Constitutional conventions

Answer 32

Marshall and Moodie defined constitutional conventions as: … rules of constitutional behaviour - -

which are considered to be binding upon those who operate the constitution

but which are not enforced by the law courts … nor by the presiding officers in the House of Commons … (Marshall and Moodie, Some Problems of the Constitution)

Question 33

Legal Rule - Royal Assent is required for a Bill to become a valid Act of Parliament. Legally the monarch may refuse to give Royal Assent

Answer 33

Convention - The monarch, on the advice of the Prime Minister, always assents to a Bill which has passed through Parliament.

Question 34

Legal Rule - The monarch constitutes part of the executive branch of government, but cannot make laws or raise taxes except through an Act of Parliament.

Answer 34

Convention - The monarch acts only on the advice of the Prime Minister and other Ministers, and in practice most decisions are taken by the Prime Minister and other Ministers themselves. Executive powers are exercised through Ministers, who are collectively and individually responsible to Parliament. Legislation involving taxation and public expenditure is controlled by the House of Commons.

Question 35

Legal Rule - The Government is the ‘Queen’s Government’, and she can therefore appoint and dismiss its members as she chooses

Answer 35

Convention The monarch must appoint as Prime Minister the person who can command the support of the majority of the House of Commons (nowadays usually an elected party leader successful in a general election).

The monarch must appoint and dismiss Ministers on the advice of the Prime Minister, all of whom must be Members of Parliament and most of whom will be members of the House of Commons.

Question 36

Individual Ministerial Responsibility

Answer 36

Government Ministers are responsible to Parliament both for the running and proper administration of their respective departments, and also for their personal conduct.

There must be no conflict of interest between a Minister’s public duties and his or her private interests.

A Minister who breaches this convention should resign. For example, in 1982 the Foreign Secretary, Lord Carrington, resigned following criticism of the administrative failings of his department, which had failed to foresee the Argentine invasion of the Falkland Islands.

Ministerial resignations owing to departmental failings are, however, comparatively rare. In contrast, resignations relating to a minister’s personal conduct are more frequent.

For example, in 1999 Peter Mandelson resigned for failing to disclose a personal loan and again in 2001 following claims that he had used his position to influence a passport application.

Question 37

Collective Cabinet (or Ministerial) responsibility

Answer 37

(i) The Cabinet is collectively responsible to Parliament for the actions of the Government as a whole, and the Government must retain the confidence of the House of Commons. A Government which is defeated on a vote of ‘confidence’ in the House of Commons must resign (as did the Labour Government when it lost such a vote in 1979).
(ii) The Cabinet must be united in public in support of Government policy, and so a Cabinet Minister must resign if he or she wishes to speak out in public against such policy (as did Robin Cook in 2003, when he wished to voice his opposition to the war in Iraq, and Iain Duncan Smith in 2016 over government cuts to disability benefits). The same principle applies to ministers who are not members of the Cabinet. Accordingly Baroness Warsi, a senior Foreign Office Minister, resigned in 2014 from the Government in protest at its policy on Gaza.
(iii) Cabinet discussions must remain secret.

Question 38

The unelected House of Lords will not reject legislation

Answer 38

…that gives effect to an important manifesto commitment of the democratically-elected Government (the ‘Salisbury Convention’).

Question 39

The UK Parliament will only legislate on a matter which has been devolved to the Scottish Parliament

Answer 39

….if the Scottish Parliament has given its consent (the ‘Sewel Convention’). Note that this Convention was inserted into s 28 of the Scotland Act 1998 by the Scotland Act 2016

Question 40

Members of the judiciary do not play an active part in…

Answer 40

..political life.

Question 41

Ministers and Members of Parliament do not criticise

Answer 41

….in public individual members of the judiciary.

Question 42

Reasons why constitutions developed - It is unacceptable in a modern democracy for an unelected monarch to have wide powers

Answer 42

so by convention these powers are now exercised by Ministers on the monarch’s behalf.
Thus:
- the monarch will always give Royal Assent to a bill if advised to do so by the Prime Minister;
- the monarch must appoint as Prime Minister the person who commands the confidence of the House of Commons;
- the monarch appoints other government Ministers on the advice of the Prime Minister.
- In a similar way, the convention that the House of Lords will not reject legislation giving effect to an important manifesto commitment of the democratically-elected Government ensures that the House of Commons takes precedence over the nonelected House of Lords.

Question 43

Reasons why constitutions developed - To enable the constitution and the Government to operate effectively and flexibly.

Answer 43

There would be a constitutional crisis were the monarch ever to refuse Royal Assent to a bill that had passed the Commons and Lords.

▪ There would be legislative deadlock if the monarch failed to appoint as Prime Minister someone who could command confidence of the House of Commons.

▪ There would also be legislative deadlock if the Government failed to resign were it lose a vote of confidence in the House of Commons.

Question 44

Reasons why constitutions developed - To ensure that the Government is accountable to Parliament for its actions.

Answer 44

Individual Ministerial responsibility ensures that government Ministers are held to account for their actions and do not abuse their powers (Ministers are not legally accountable to Parliament).

Collective Cabinet responsibility ensures that the Government as a whole must retain the confidence of Parliament, and can be held to account by Parliament for its actions (again there is no direct legal accountability to Parliament).

Question 45

Reasons why constitutions developed - To maintain the separation of powers between the different branches of state.

Answer 45

The convention that members of the judiciary do not play an active role in politics helps to preserve judicial independence.

The convention that Ministers and MPs do not criticise individual members of the judiciary also helps to preserve this.

Question 46

The Crown Proceedings Act 1947

Answer 46

abolished the immunity of the Crown in respect of claims made against it in either tort or contract;
Principle - Royal Prerogative power can be removed by statute

Question 47

Attorney-General v De Keyser’s Royal Hotel [1920]

Answer 47

Principle - statute can put Royal Prerogative powers in abeyance

A hotel was taken for wartime use by the War Office during the First World War. The lessees of the hotel sought compensation under the Defence Act 1842, which authorised requisitioning and provided for compensation. The Government argued that irrespective of the statutory provisions, there was a prerogative power entitling the Crown to requisition the land of a subject in time of emergency and that compensation was not payable as of right.

The court held that the terms of the Defence Act, whilst not expressly abolishing this prerogative power, had put the power ‘into abeyance’.

Question 48

Thoburn v Sunderland City Council [2002]

Answer 48

Lord Justice Laws, in obiter comments, suggested there is a hierarchy of Acts of Parliament, making a distinction between ‘ordinary’ statutes and ‘constitutional’ statutes.

The rationale behind the suggestion that some statutes are ‘constitutional’ and thus immune to implied repeal is based on common law. Statutes that are ‘constitutional’ are of such significance that the courts would require actual intention from Parliament to change them, not an implied intention.

The suggested test for a constitutional statute is: (a) the statute must condition the legal relationship between citizen and state in some general, overarching manner; or (b) the statute must change the scope of fundamental constitutional rights.

For a constitutional statute to be repealed, there had to be ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’

Question 49

Burmah Oil Company v Lord Advocate [1965]

Answer 49

Example of the flexibility of case law

The H of Lords awarded compensation to Burmah Oil for financial losses sustained in WWII. Fearing that would lead to a flood of similar claims, Parliament enacted the War Damage Act 1965 which overruled the H of L decision and provided that compensation was not payable.

Question 50

Case of Proclamations (1611)

Answer 50

Principle - Prerogative powers cannot be created.

The King had the power to make Royal proclamations which had the force of statute. The powers were intended for use in times of emergency and were subject to a number of qualifications but the King used them, amongst other things, to prohibit the construction of new houses in London. Chief Justice Coke held that ‘the King hath no power but that which the law of the land allows him’ (the King could not create new prerogative powers for himself).