UK Government - Nature and Sources of The British Constitution

Question 1

The British constitution is uncodified. What does this mean?

Answer 1

This means that the constitution is located in multiple places and in multiple different forms. It is not in one single document or place

Question 2

It is also unitary. What does this mean?

Answer 2

Most power lies with the centre (Westminster Parliament).

Question 3

How should a constitution in a Western, liberal democracy be judged and evaluated?

Answer 3

• A guarantee of free, fair and democratic elections.
• Respect for individual human rights, individual consciences and promotion of tolerance.
• Balance of individual rights with broader collective rights.
• Lays out clearly where power and decision-making lies, and addresses the notion of sovereignty; i.e where final power and authority lies.
• Has clear mechanisms for resolving problems and conflicts when conventional decision-making proves problematic. (e.g Brexit in 2016)
• Is easy to understand and encourages citizens to participate in the political process.
• Can be adapted and is flexible to changing circumstances while retaining core values and a sense of national identity.
• Upholds the rule of law through an independent judiciary, which ensures that everyone is treated equally irrespective of position, privilege or wealth.
• Promotes a wider sense of political stability and shared prosperity.

Question 4

How does this contrast with the US and Germany?

Answer 4

They have federal government systems with considerable power being given to states or regions individually. The 10th Amendment of the US constitution expressly states that the powers not delegated to the government are reserved for the states.

Question 5

Why is the British constitution considered by some commentators as ‘quasi-federal’?

Answer 5

The development of the devolved assemblies of the UK regions has weakened this unitary nature, leading to this definement of the Constitution.
Devolved assemblies - government of Scotland, Ireland and Wales have been given more individual power, but Westminster is still the central power

Question 6

What is parliamentary sovereignty?

Answer 6

The parliament holds all the power and has a final say in what the constitution states. This essentially means that the legislation enacted by an elected parliament can be changed or revoked by a new parliament.

Question 7

Give an example of this sovereignty

Answer 7

UK membership of the EU is an example of this, as parliament voted to join the EEC in 1972 with the European Communities Act, with the laws that allowed this eventually being repealed to enable Brexit and new laws such as the European Union (Withdrawal) Act 2018 and the European Union (withdrawal agreement) 2020 allowing Brexit to happen.

Question 8

What is the rule of law which the UK constitution operates under?

Answer 8

This means that the law applies to all people equally, including those who make the law. For example, the Prime minister and ministers must not exceed their lawful powers, even though they themselves made that law. If they do, their actions can be challenged by law courts and they can be found guilty of acting beyond the law (ultra vires). This was referred to by political writer Dicey along with parliamentary sovereignty to be the ‘twin pillars’ of the British Constitution.

Question 9

What is the synoptic link?

Answer 9

Parliamentary sovereignty is significant as it allows for the British constitution to be flexible and adaptable - it can be simply changed by an Act of Parliament. In contrast, the US constitution is sovereign, and so all laws passed by Congress must be matched to the constitution. Formal amendment is therefore complex and therefore rare for the US, but not the UK.

Question 10

What are the pros of a codified constitution?

Answer 10

Acts as a sovereign power - checks the government and is a higher body of law
It cannot be amended like normal laws passed by legislature - clear cut
The constitution can only be changed by some special procedure, it allows the courts to strike down laws they view to be unconstitutional
Allows for greater protection of the civil liberties and human rights (Bill of Rights)
When a situation of complex constitutional law arises, a written constitution would be able to outline the processes to take (clear cut)

Question 11

What are the cons of a codified constitution?

Answer 11

It cannot be amended like normal laws passed by legislature - entrenched
Judiciary is made political by the constitution

Question 12

What are the pros of an uncodified constitution?

Answer 12

Flexible and easy to change - can address political and legal developments in society - it is an organic constitution
An uncodified constitution allows the judiciary to be apolitical

Question 13

What are the cons of an uncodified constitution?

Answer 13

When a situation of constitutional complexity arises, the absence of a codified constitution makes understanding what process to take more difficult

Question 14

The nature of constitutional rights in the UK

Answer 14

Disagreement as to whether it is worth labelling some rights as constitutional in order to stress their importance
Lord Steyn remarked that to classify a right as constitutional strengthens the value in that the court is always required to protect it
On the other hand, the principles of constitutionally are not different from the idea of a codified constitution

Question 15

What are the sources of the BC?

Answer 15

• Statute law
• Common law
• The Royal Prerogative
• Conventions
• International Agreements
• Works of Authority

Question 16

What is statute law?

Answer 16

Any law passed by both Houses of Parliament and has received royal assent

• Became clear in the 16th century that Parl would become the main lawmaker
• Refers to the Acts of Parl. (AoP) which form the most important source of the BC
• Constit. State Law includes las that define who can vote and human rights
• Statute law consists of all pieces of legislation passed by Parl, with some being seen as moe constitutional than others (less likely to be amended or overridden, foundation of what other laws say) e.g. Human Rights Act (1998), ECA (1971) and Bill of Rights (1688)
• The acts of P that raise constitutional questions shape and form parts of the Constit. and there is debate about certain SL being constitutional without raising questions
• Case study - Thoburn v Sunderland City Council referencing the ECA, which was not overruled
• Before Britain exited the EU, European law also indirectly informed the BC as Euro. laws and treaties took automatic precedence over Westminster law and were binding on the UK government representing clear and temporary limit on parliamentary sovereignty

Question 17

What is common law?

Answer 17

The body of legal precedent resulting from the rulings of senior judges - sometimes referred to as a case law or judge-made law

• This is not consistent across the Union because of the separation of legal systems from the Acts of Union in 1707
• Comprised of laws and rights passed down over the years by legal judgements, or judicial precedent e.g. freedom of expression and criminality of murder
• Can and is modified by statute law and many statue laws over time have dealt with punishments for common precedents, such as abolishing the death penalty in 1965
• Claims legitimacy by embodying the values of the community shaped by precedent - every case heard by a judge sets a precedent for future cases that are similar
• It is recorded in case files but not as a collective document as it comes into being through judicial process
• Pre dates P; has historical advantage
• Different views of common law come from Coke (1522-1634) and Blackstone (1732-80) - modern political notion that power is vested in Parl, but has more influence because it has been making laws for thousands of years and so is more influential (but P is sovereign lawmaker)

Question 18

What is The Royal Prerogative?

Answer 18

Formal powers of the monarch that are, in practice, exercised by the PM and Gov. The monarchy is above party politics and plays a ceremonial role; important prerogative powers like appointing ministers, making int. treaties and calling general elections lies with the executive (PM and Cabinet) not the legislative (Parl.)

• The residual or remaining powers exercised in the name of the crown; they range from high-profile powers such as power to seek a dissolution or suspension of Parliament, to less-known ones, such as issuing UK passports e.g. August 2019; PM Johnson sought the Queen’s permission to prorogue parliament for a longer period of 5 weeks
• Move seen by critics as an attempt to avoid scrutiny of the government’s Brexit proposals
• Prorogation was duly granted but then subsequently ruled illegal by unanimous 11-0 judgement of the UK Supreme Court in September 2019, with the opinion of the action being unlawful
• It is seen as a key factor in boosting the powers of the PM and the executive

Question 19

What are conventions?

Answer 19

Unwritten rules and procedures that are mostly concerned with parliament that facilitate the smooth running of the Constitution; when conventions are broken it can often lead to problems and deadlock.
- Not legally binding rules and principles but are an accepted practice - virtue of their acceptance by those in power, and important conventions mainly deal with the relationships between the three branches of government (executive, legislature and judicial)
- Enable politics and particularly parliament to function efficiently and smoothly
- Not written, but are generally agreed rules and procedures
Example of a convention;
- Following a general election, the monarch formally invites the leader of the largest single party to form a government; in the situation of a ‘hung parliament’, a coalition must be secured to have the majority needed to be asked to form a government
- Most important convention - the royal assent given by the monarch to the bills passed by both HoP - the last time a royal assent was held was in 1707, where Queen Anne refused to sign the Scottish Militia Bill - denial of royal assent today would create a constitutional crisis
- Monarch conventions - ensures vestigial prerogative powers are normally exercised with advice from ministers e.g. could stop a law, but the convention is that they don’t
- Doctrine of the Cabinet (ministerial) responsibility to Parliament was created through a chain of conventions, extending to the principle of ‘Collective Responsibility’ which states the Cabinet must show a united front for policy decisions
- ‘The Salisbury Convention’ - requires the HoL should not oppose a measure sent to the Commons which is part of the government manifesto

Question 20

What are works of authority?

Answer 20

A variety of books and documents that deal with areas including parliamentary procedures and the responsibilities and duties of government and ministers.
- Less important but sways the parliamentary rules; least visible and clear sources of the BC, generally comprising of books and documents that deal with parliamentary procedure and the responsibilities and duties of government and ministers
- Established political texts that are part of the constitution and explain how the constitution is developed and works, and explain how government should work
- Accepted practice and can be referred back to
No legal authority, but have persuasive authority by offering guides to political decisions made
- Authoritative opinions also make up the BC

Question 21

What are international agreements?

Answer 21

A broad term for legally binding agreements, covered by int. law between countries; includes treaties, conventions, protocols, annexes, accors, pacts, declarations etc. If the UK has signed an IA she is legally bound to abide by it.

• European Union Law - UK joined the EEC in 1973, the treaties that establish the EU and has caused political debate during Brexit
• If the UK left with no deal, this would lead to a change in to the UK constitution as the treaties will not be binding nor will the decisions of the EU

Question 22

Examples of Works of Authority pt1

Answer 22

Walter Bagehot’s ‘The English Constitution’ (1867)
- Wished to distinguish between ‘dignified’ and ‘efficient’ aspects of the Constitution e.g. the monarch is the dignified, having only ceremonial powers, and the cabinet is the ‘efficient’ holding most of the real power, emerging form the HoC, declared the ‘ultimate authority in the English Constitution’

V.Dicey’s ‘Introduction to the Study of the Law of the Constitution (1885)’
- Dicey was an Oxford law professor, seeking to explain and identify the main characteristics of the BC
Included identifying the ‘twin pillars’ of democracy and conventions such as the royal assent, and inability to veto bills passed by the HoP
- Strongly asserted the notion of parliamentary sovereignty, commenting that Parliament was a sovereign legislature and under the BC is possessed the right to make and change laws whenever

Question 23

Examples of Works of Authority pt2

Answer 23

Erskine May’ ‘Parliamentary Practice’ (first published 1844, most recent 2019)

• Often referred to as the ‘Bible of parliamentary procedure’ and is regularly referenced by the speaker of the Commons when making rulings about the conduct of parliamentary business and debates
• Includes the standing order of each chamber, historical precedence and key rulings of the speaker and can speak public prominence
• Recent example - March 2019, John Bercow cited a 1604 convention to prevent PM May bringing her Brexit withdrawal deal before Commons for the third time that parliamentary session

The Cabinet Manual (2010)

• Produced by the Cabinet Office at the start of the coalition government (first one for 60 years) to offer a guide into how the British government and parliament would work, covering a wide range of topics
• This includes ministerial conduct, cabinet composition and the scrutiny of government by Parliament
• It was initiated by former PM Gordon Brown

Question 24

What are constitutional statutes?

Answer 24

Due to the UK constitution beng uncodified, the parliament has sovereignty and is able to unmake or make any law they wish; and so there is no distinguishing between Acts of Parliament and ordinary law like there are in countries with a codified constitution, where they higher law cannot be contrasted by an ordinary statute law. There are some acts which are more ‘constitutional’ and important however due to their content, which addresses the power and shape of government, institutions or citizens rights. As a result, they are more vital to our constitution.

Question 25

Why is the Act of Settlement (1701) an important constitutional statute?

Answer 25

It established new statutory rules of royal succession, prevented any Catholics or anyone married to a Catholic from ascending to the throne, and took steps to increase judicial independence:

• Protected the salaries of judges to ensure the threats to cuts or pay rises would not influence decisions
• Parliament, not the monarch had to agree to dismiss a judge
• Judges could only be removed from office for bad behaviour, rather than their decisions

Question 26

Why are the Laws in Wales Acts (1535 +1542) and Acts of Union (1707 + 1800) such significant constitutional statutes?

Answer 26

Parliament of England became the Parliament of the United Kingdom of Great Britain and Northern Ireland

• Laws in Wales Acts (1522 & 1542) - Made Wales a full and equal part of England, extending the English legal system to Wales and allowing Wales to send MPs to Westminster
• Acts of Union (1707) - Although England and Scotland had shared a monarch since 1603, they still had separate Parliaments - these Acts united the two states, and established the Parliament of Great Britain at Westminster
• Acts of Union (1800) - United Great Britain with Ireland, who began to elect MPs to represent them in the Parliament of the UK of GB and Ire
• Irish Free State Constitution - 1921; all but 6 Irish counties seceded leaving two separate nations, the IFS and the UK of GB and NI, recognising the new constitution of Ireland

Question 27

Why are the Parliament Acts (1911 and 1949) important constitutional statutes?

Answer 27

1911 - replaced the House of Lords absolute veto over legislation with the power to delay non-money bills for two years - they could, importantly, not have the power to delay bills certified as money bills by the speaker (taxes and spending). The only bill they are still able to veto is a proposal to extend the life of a Parliament beyond 5 years to prevent someone being in power indefinitely (protects democracy)
1949 - Ensured the Commons became even more dominant by reducing the Lord’s power to delay a bill to just one year

Question 28

Why are the Reform Acts & Representation of the People Acts also landmark constitutional statutes?

Answer 28

Extended the franchise by lowering property requirements (TGRA 1832, TRA 1867, TROTPA, 1884)
TROTPA (1918) - expanded the electorate to include all men over the age of 21 and all women over the age of 30
TEFA 1928 (The Equal Franchise Act) - lowered the voting age for women from 30 to 21
TROTPA (1969) - Extended the franchise to almost all citizens over the age of 18

Question 29

What is the common law? What are its origins? Where can we find it?

Answer 29

Laws developed by the decisions of judges, originating from William the Conqueror’s establishment of the Curia Regis (King’s Court) in 1066 to appoint judges that assisted in settling disputes, and Henry II establishment of ‘circuits’ for judges to tour to settle disputes using local customs and existing laws; the royal judges essentially transformed local courts into an extension of the national royal court.

• The earliest judges had far fewer written laws to turn to and had to rely on ancient aws and long standing local customs, along with their own sense of justice to decide difficult cases (modern judges rely on centuries of detailed statutes to decide cases)
• When the King’s judges returned to Westminster, they would discuss the cases and the reasoning of decisions, and judges gradually began to rely upon customs, principles and ancient laws that had proven most effective in delivering justice - judges were filling gaps let by written statute laws and were also establishing a ‘common’ body of law throughout the country
• Over time, written records began to kept of the most important judicial decisions, becoming an important source of common law principles for lawyers and other judges (partly codified) - Sir William Blackstone described this in his ‘Commentaries on the Laws of England’ (1765-69)
• A more formal system of precedent was established - when cases are similar, the same reasoning is expected to be used every time to make decisions consistent and predictable

Question 30

What is the principle of stare decisis, and why is it so important to the common law?

Answer 30

Stare decisis - stand by decided matters; ensuring that common law is followed and decisions are consistent and predictable through the use of the same determined logic

Case study: A and Others v Secretary of State for the Home Department (No 2) (2005)

• The applicants had been detained on the orders of the Home Secretary, who believed they posed a terrorist threat
• Detainees argued that the evidence against them and behind that decision was obtained by torture and should not have been admitted, as well as being supplied by foreign governments
• The House of Lords, the highest court at that time, agreed common law had long forbidden such evidence to be admitted

Entick v Carrington (1765):
- This landmark ruling established the principle that the state can only act in a manner that is prescribed by statute or common law

Question 31

Which courts have the power to establish precedent?

Answer 31

Supreme Court and the Courts of Appeal (criminal and civil)

Question 32

What is the relationship between statutes and common law? Which is supreme?

Answer 32

As Parl has sovereignty, statutes override the common law. If a statute says one thing, but past decisions contradict this, then the judges have to abide by the statute law, which takes precedence

Case study - Al Rawi v Security Service (2010)

• Several men held at Guantanamo Bay claimed compensation for their alleged detention, rendition and mistreatment
• The gov wished to use ‘closed material procedure’ where sensitive evidence is only shown to the judge, not the other side
• However, this differed from the common principle that both sides must see the evidence in order to give a fair account on it - The Supreme Court ruled that allowing GMPs to be used in ordinary civil trials would undermine common law principles of open and natural justice
• In response to this, Parl passed the Justice and Security Act (2013) which permitted courts to order the use of closed material procedures of the disclosure of sensitive evidence would threaten national security
• Therefore the statute law overrides the common

Question 33

What is the issue with statute law having more authority?

Answer 33

However, not every question of law has been answered with an act being passed, and so the common law is still relied upon in many cases to make legal decisions, and so forms a large foundation of our constitutional practices. Judges also play a vital role in interpreting and applying important statutes, as they are often ambiguously worded and so common law constantly shapes the constitution.
- Judges have developed common law principles to determine how judges should interpret and apply statute law (R v Lord Chancellor, ex parte William 1997 - involved deciding the interpretation of the Supreme Court Act 1981; ruled that this Act should be narrowly interpreted as access to court is a fundamental constitutional right in common law)