Sources of the Constiution Flashcards
- What did Lord Bingham say in Jackson v Attorney General about the constitution?
“The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament” - Lord Bingham
Jackson v Attorney General [2005] UKHL 56
- What are some of the Statues that are of a Constituional Nature? (8 statutes)
Magna Carta 1297 – clauses 39 and 40 are especially important. It gives people rights (universality) it sought to give rights.
Habeas Corpus Act 1679 – ‘Habeas Corpus’ meaning bring up or produce the body this act guaranties us the right to go to the magistrates’ court and if necessary the high court to prove that a man has committed a crime AND it gives us the right to produce the body of the person and provide a lawful reason as to why the person is not liberated. (This is derived from when soldiers used to lock people up in a tower for little to no reason and then forget about them.)
Bill of Rights 1689
Act of Settlement 1700 – parliament can trace, prove and control, who the reigning monarch is.
Parliament Acts 1911 & 1949 – this act governed the relationship between House of Commons (HOC) and the House of Lords (HOC).
The HOL can delay the Royal Assent by 1 year if it is still not authorised then it will be passed on to the King in order to be and Act of Parliament
Constitutional Reform Act 2005 – allowed the estabhilsment of the supreme court separating the house of lords, our highest court of appeal
Fixed-term Parliaments Act 2011
Dissolution and Calling of Parliament Act 2022
House of Lords Act 1999 – reduced the amount of people who were made “Lords” and were in the house of Lords purely because they were born into it
- What is the Enrolled Bill Rule?
The courts of law have no power to determine whether the subject matter of an act of parliament is wise or desirable
- Madzimbamuto v Lardner Burke 1969
“all that a court of Justice can look to is the parliamentary role they see that an act has been passed by both houses of parliament and that it has received the Royal Assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament
- Lord Campbell
See Pickin v British Railways Board [1974] AC 765
Edinburgh & Dalkeith Railway Co. v Wauchope (1842) 8 E.R. 279
- What did Lord Reid say about Parliament doing certain things?
“It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things.
But that does not mean that it is beyond the power of Parliament to do such things.
If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid.”
- What was said in Semayne’s Case?
“the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose”
- Semayne’s Case (1604) 5 Co Rep 91a
- What happened in Entick v Carrington?
In 1762, John Entick, a London journalist, sued several agents of the Crown, including Nathan Carrington, for trespassing upon his property and seizing his papers. The agents had been acting under a warrant issued by the Secretary of State, Lord Halifax, authorizing them to search for seditious materials without specifying any particular reason or evidence against Entick.
Entick argued that the warrant was illegal because it did not allege any specific wrongdoing on his part, and therefore the agents had no right to search his premises.
Lord Camden ruled in favor of Entick, declaring that the warrant was invalid because it did not specify the grounds for the search. He emphasized the principle that every man’s house is his castle and that the law protects an individual’s right to privacy and property from arbitrary intrusion by the government.
- What did Lord Denning say about how the King cannot enter into someones residence in Southam v Smout?
“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his forces dares not cross the threshold of the ruined tenement.” So be it - unless he has justification by law.”
- Lord Denning, Southam v Smout [1964] 1 QB 308
- What are constitutional conventions according to Owen Hood Phillips & Jackson?
“Rules of political practice, which are regarded as binding, by those to whom they apply, but which are not laws because they are not enforced by the courts…”
- What is Ivor Jennings Criteria regarding constitutional conventions?
1) Are there any Precedents?
2) Did actors believe they were bound?
3) Is there a reason for the rule?
- What are constitutional conventions in general terms.
These are non-legal rules of political custom and practice which have developed over the centuries. As we saw in the lecture in the Madzimbamuto case the courts will not enforce these rules if a party complains that they have been breached.
This is because the remedy for breach of a convention lies in the political sphere rather than the legal one.
For example, there may be practical and severe political consequences for those who break conventions, but these are not legal consequences.
A very important convention is that the Monarch must appoint as Prime Minister the MP who commands the support of a majority of MP’s in the House of Commons i.e. at least 326MP’s.
- What happened if the Monarch ignored this rule?
If the Monarch ignored this rule and just appointed a personal friend of theirs as Prime Minister, the courts would be powerless to intervene but there would be very real political consequences, probably resulting in the requirement for Royal Assent being abolished
- What happened with King William IV in terms of appointing a new Prime Minister and the political consequences?
This is reflected in historical practice e.g. King William IV was the last monarch to dismiss a Prime Minister who enjoyed the confidence of the House of Commons.
This dismissal backfired as the King’s replacement was unable to pass any Bills and a General Election resulted in the return of the sacked PM with a larger majority.
No future Monarch has ever attempted to sack a Prime Minister in this manner.
Likewise, another important convention is that the Monarch must grant Royal Assent to any Bill that has been through its proper stages in the Commons.
- Who was the Last Monarch so seriously doubt this rule?
The last Monarch to seriously doubt this rule was George V who pondered using veto to block the Home Rule Bill. However, George V ultimately decided to give Royal Assent to the Bill despite his personal objections.
- What is another important point on constitutuinal convenctions being that they are not legal rules?
Another important point is that conventions being non-legal rules they are rarely written down.
This compares unfavourably with the US where it is easy to look up rules in the codified document.
This applies to major, fundamental rules such as who may become the UK Prime Minister – is this satisfactory
- What is the Royal Prerogatives in relation to Constitutional Conventions?
The royal prerogative is the term for the common law powers which ONLY the Crown possesses. Blackstone’s definition makes this clear. Blackstone also describes the royal prerogative in a restrictive way:
‘the King enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects’
We can all enter into and sign contracts with others but only the King has the power to declare war on another country.
