Topic 2. The UK Constitution

Question 1

Definition of constitution 1, by Wheare. 2, by HLSC (2001)

Answer 1

the whole system of government of a country, the collection of rules which establish and regulate or govern the government’. (Wheare)

2001, the House of Lords Select Committee on the Constitution defined the constitution as:

the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between different institutions and between those institutions and the individual.

Question 2

Uncodified UK Constitution

Answer 2

Does not exist in a single document, no specific constitutional court, flexible and can be easily amended (simple majority 51%). Has multiple sources - legal and non legal.
Written and unwritten, mostly written.

Question 3

Constitutional principles

Answer 3

Parliamentary Sovereignty,
the Partial Separation of Powers
the Rule of Law

Question 4

Constitutional convention. Definition from government cabinet manual:

Answer 4

rules of constitutional practice that are regarded as binding in operation but not in law”.

Written constitutional conventions can be found in the ministerial code and The cabinet manual

Question 5

Components of the British constitution as set out by the Lords’ constitution committee

Answer 5

Sovereignty of the Crown in Parliament
The Rule of Law, encompassing the rights of the individual
The Union State
Representative Government
Membership of the Commonwealth, the European Union and other international organisations

Question 6

Jennings on the UK constitution (the law and constitution)

Answer 6

If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document itself merely sets out rules determining the creation and operation of governmental institutions, and obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is used to describe those rules.

Question 7

Constitutional conventions according to Jennings

Answer 7

the constitutional conventions ‘provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas’.

Question 8

Attorney General v Jonathan Cape Ltd [1976]

Answer 8

Issue:
Is the court authorised, on grounds of public policy, to prevent the publication (Sunday Times had published part of it) of information (was in the ministers diary) in breach of confidence?

This case confirmed the existence of collective ministerial responsibility as a convention and its position as an ‘established feature of the English form of government’

Question 9

Re Amendment of the Constitution of Canada [1981]

Answer 9

Issue

By constitutional convention, is provincial consent required to amend the Constitution of Canada?

Held (Supreme Court of Canada)

The majority held that constitutional convention required for a substantial degree of provincial consent before the Constitution could be amended
Constitutional conventions are unenforceable at law and as such, the two Federal houses were not legally required to obtain provincial consent

Question 10

Carltona v Commissioners of Works [1943]

Answer 10

Key Point
Where a statute grants a power to the Secretary of State, the court will treat the decision of a departmental official as being one made by the Secretary of State without offending the rule against delegation

Held (Court of Appeal)
Appeal dismissed, the action of the official was not a delegated act: it was an act of the Minister

Question 11

Miller v Secretary of State for Exiting the European Union [2017]

Answer 11

The Miller case concerned the constitutional requirements for the UK to give notice of its intention to withdraw from the EU pursuant to Article 50 of the Treaty on European Union.

Key point
Government lacks the authority, through use of prerogative powers, to bring about the removal of EU law as an independent source fundamental constitutional change
EU law, by virtue of section 2 of the European Communities Act 1972, had become a source of domestic law, to give notice under Article 50 would entirely remove this source of domestic law, a significant constitutional change that requires the consent of Parliament

Held (Supreme Court)
Appeal dismissed; the Government could not issue a notice under article 50 without the approval of Parliament.