UK's Constitution*

Question 1

What is parliamentary sovereignty using case referencing? R v Jackson [2005]

Answer 1

• The doctrine of parliamentary sovereignty holds that Parliament is the supreme legal authority in the UK, and can make or unmake any law it chooses. This means that no other body, including the courts, can override or set aside an Act of Parliament.
• The doctrine has been criticised for giving too much power to Parliament, and for potentially allowing the government to violate human rights without being held accountable.
• R v Jackson [2005] UKHL 56, in which the House of Lords affirmed the doctrine of parliamentary sovereignty, but also recognised that the rule of law and human rights can limit its application.

Question 2

What is the Human Rights Act 1998 using case referencing? R (Ullah) v Special Adjudicator [2004]

Answer 2

• The Human Rights Act 1998 is a UK law that incorporates the European Convention on Human Rights (ECHR) into UK law.
• It requires public authorities to respect the rights and freedoms protected by the ECHR, and allows individuals to bring legal claims in UK courts if their rights have been violated.
• The Act has been criticised by some for giving too much power to the courts, and for potentially interfering with parliamentary sovereignty.
• R (Ullah) v Special Adjudicator [2004] UKHL 26, in which the House of Lords held that the Human Rights Act 1998 should be interpreted in a way that is consistent with the UK’s obligations under the ECHR.

Question 3

What is the royal prerogative using case referencing? R (Miller) v The Prime Minister [2019]

Answer 3

• The royal prerogative is a set of powers and privileges historically held by the monarch that are now exercised by the government. These powers include the power to make treaties, appoint ministers and judges, and declare war.
• The royal prerogative has been criticised for giving too much power to the executive, and for lacking transparency and accountability.
• R (Miller) v The Prime Minister [2019] UKSC 41, in which the Supreme Court held that the Prime Minister’s advice to the Queen to prorogue (suspend) Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions.

Question 4

What is the rule of law using case referencing? R (Miller) v Secretary of State for Exiting the European Union [2017]

Answer 4

• The rule of law is the principle that everyone is subject to the law, including the government.
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, in which the Supreme Court held that the government could not trigger Article 50 of the Treaty on European Union (which starts the process of withdrawing from the EU) without the approval of Parliament, because it would change the rights of UK citizens under UK law.

Question 5

What is the separation of powers? Why? R (Evans) v Attorney General [2015]

Answer 5

• The separation of powers is the division of powers between the legislative, executive, and judicial branches of government. This is intended to prevent any one branch from having too much power, and to ensure that each branch can act as a check on the others.
• R (Evans) v Attorney General [2015] UKSC 21, in which the Supreme Court held that the government could not use the royal prerogative to withhold information about the Iraq War from Parliament, because this would interfere with the ability of Parliament to carry out its constitutional functions.

Question 6

What are constitutional conventions with case referencing? R (Miller) v The Prime Minister [2019]

Answer 6

• A constitutional convention is an unwritten rule that governs the behaviour of political actors and institutions in the constitutional system.
• These conventions are not legally enforceable, but they are considered to be binding because they have been accepted as a legitimate part of the constitutional system.
• Conventions include the requirement for the Prime Minister to resign if they lose the support of the House of Commons, the requirement for the government to seek parliamentary approval for major policy decisions, etc
• R (Miller) v The Prime Minister [2019] UKSC 41, in which the Supreme Court held that the Prime Minister’s decision to advise the Queen to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions. The court also recognised the role of constitutional conventions in the UK’s constitutional system.

Question 7

What is devolution using case referencing? AXA General Insurance Ltd v The Lord Advocate [2012]

Answer 7

• Devolution is the transfer of powers and responsibilities from the central government to regional or local governments within a country. In the UK, devolution has resulted in the establishment of the Scottish Parliament, the National Assembly for Wales, and the Northern Ireland Assembly.
• Devolution has been criticised for potentially creating confusion and inconsistency in the application of law, and for potentially undermining the unity of the UK.
• AXA General Insurance Ltd v The Lord Advocate [2012] UKSC 67, in which the Supreme Court held that the Scottish Parliament had the power to legislate on the Scottish government’s scheme for compensating victims of asbestos-related diseases, even though this area of law was reserved to the UK Parliament.

Question 8

What is the EU?

Answer 8

• The European Union is a political and economic union of 27 member states, including the UK until its withdrawal in 2020. The EU has its own legal system and institutions, including the European Court of Justice, which has the power to interpret and enforce EU law.
• The UK’s membership in the EU had a significant impact on its constitutional system, including its relationship with the European Convention on Human Rights and the doctrine of parliamentary sovereignty.

Question 9

Uncodified constitution

Answer 9

The UK Constitution is not contained in a single written document but is derived from a variety of sources, including statutes, case law, conventions, and treaties.

Question 10

Statute Law

Answer 10

Law that is passed by Parliament, also known as Acts of Parliament. an important source of the UK Constitution

Question 11

Common Law

Answer 11

Legal principles that have developed over time through judicial decisions.

Question 12

Constitutional Reform Act 2005

Answer 12

Legislation that established the Supreme Court of the United Kingdom and reformed the judicial appointment process.

Question 13

Does the UK have codified a constitution?

Answer 13

No, the UK does not have a written or codified constitution.
The absence of a single document outlining fundamental principles and government structure distinguishes the UK’s constitutional framework.
Instead, the UK relies on a combination of statutes, common law, conventions, and authoritative legal documents.

Question 14

What does Fred Ridley say in his article on the UK’s constitution?

Answer 14

Fred Ridley’s article “There is No British Constitution: A Dangerous Case of the Emperor’s Clothes” supports the viewpoint that the idea of a British constitution is empty words without substance.
The existence of a constitution in the UK is a matter of interpretation and perspective.

Question 15

Vernon Bogdanor, in his book, ‘Brexit and our Unprotected Constitution’ (2018) suggests Brexit left the UK Constitution exposing vulnerabilities, why?

Answer 15

• The UK constitution lacks explicit procedures for the process of leaving the European Union.
• Brexit revealed tensions between parliamentary sovereignty and the principle of EU law supremacy.
• Devolved administrations had concerns about the impact of Brexit on their respective powers and relationships with the UK government

Question 16

What is Lord Bolingbroke’s view on the UK’s constitution?

Answer 16

‘By constitution we mean… that assemblage of laws, institutions and customs… according to which the community hath agreed to be governed.’

Question 17

What are the functions of a constitution?

Answer 17

(i) creating and distributing public power - Parliament, government, courts, Crown, etc
(ii) creating mechanisms of accountability - General elections, judicial review, parliamentary scrutiny
(iii) generating legitimacy

Question 18

How is legitimacy generated by the UK constitution?

Answer 18

• Democratic principles, such as popular sovereignty (referendums) and representative government (general elections)
• The rule of law ensures fairness and equality before the law
• The Ombudsman allows for scrutiny of public bodies.
• Judicial review allows for the scrutiny of government actions

Question 19

What are the advantages of a codified constitution?

Answer 19

• Clarity and Accessibility: A codified constitution provides a clear and accessible document. Example: The United States Constitution outlines the fundamental principles and structures of the U.S. government.
• Legal Certainty: A codified constitution reduces ambiguity and provides certainty. Example: The German Basic Law (Grundgesetz) establishes a definitive legal framework for Germany, ensuring consistency in decision-making.
• Protection of Rights: A codified constitution includes a bill of rights or declaration of fundamental rights. Example: The Constitution of India explicitly protects individual rights, such as freedom of speech and equality before the law.

Question 20

Instances where a codified constitution could have served the UK well

Answer 20

• Brexit: The lack of clear constitutional provisions for leaving the European Union was highlighted in the legal case of Miller v. Secretary of State for Exiting the European Union (2017). The UK Supreme Court ruled that triggering Article 50, which initiated the Brexit process, required an act of Parliament. This case exemplified the ambiguity and legal disputes arising from the absence of explicit guidelines in the UK’s unwritten constitution. A codified constitution could have provided explicit provisions and procedures for such a significant constitutional change, reducing ambiguity and potential legal disputes.
• Protection of Devolved Powers: The case of R (Miller) v. The Prime Minister (2019), also known as the “Prorogation Case,” demonstrated the tensions and conflicts over the powers of the UK government and devolved administrations. The UK Supreme Court ruled that the prorogation (suspension) of Parliament by the Prime Minister was unlawful. This case highlighted the need for clearer constitutional provisions regarding the powers and relationships between the UK government and devolved administrations to mitigate conflicts and ensure a fair distribution of authority.

Question 21

What are the four central constitutional institutions?

Answer 21

• Government
• Parliament
• Courts
• Crown

Question 22

Quote from Bill of Rights 1689 emphasising parliament’s supreme power

Answer 22

Article 9: ‘…Proceeding in Parlyament ought not to be impeached or questioned in any Court…’

Question 23

How was UK Parliament central to the Brexit process?

Answer 23

1. Triggering Article 50: The decision to trigger Article 50 of the Treaty on European Union, which initiated the formal process of the UK’s withdrawal from the EU, required the approval of the UK Parliament. In 2017, the European Union (Notification of Withdrawal) Act was passed by Parliament, granting the government the authority to trigger Article 50.
2. Legislative Scrutiny and Amendments: Parliament played a crucial role in scrutinising and amending legislation related to Brexit. Several bills, such as the European Union (Withdrawal) Act 2018, were passed to ensure the incorporation of EU law into UK law and provide a legal framework for the post-Brexit period. Parliament debated and proposed amendments to these bills, shaping the legal framework for the UK’s departure from the EU.
3. Parliamentary Votes and Resolutions: Throughout the Brexit process, Parliament held numerous votes and resolutions on key Brexit-related matters. These included indicative votes on various Brexit options, motions of no confidence in the government, and debates on extending the Brexit deadline.

Question 24

Example of common law - Entick v. Carrington (1765)

Answer 24

Entwick, who was alleged to be the author of seditious writings, had his home searched and his papers seized by officials without warrant or legal justification. Entick argued that this action was a violation of his rights and constituted a trespass.

The court’s ruling established a legal precedent regarding the protection of individual privacy and the limits of governmental authority. This precedent then became part of the common law, serving as a guide for future cases and influencing the legal principles and rules in similar situations.

Question 25

What is the Rule of Law?

Answer 25

The Rule of Law refers to the principle that all individuals, including government officials, are subject to and accountable to the law.

Question 26

Example of common law - Burmah Oil Co. v. Lord Advocate [1965]

Answer 26

• The British government’s destruction of the Burmah Oil Company’s property during World War II was found to be lawful under the royal prerogative.
• However, the court ruled that the government was still liable for compensation under the common law principle, emphasizing the importance of the Rule of Law and the obligation to provide compensation for property rights violations.
• This case exemplifies the application of common law principles in holding the government accountable and ensuring justice for affected individuals.

Question 27

Why was Burmah Oil Co. v. Lord Advocate [1965] lawful under the royal prerogative?

Answer 27

The government’s decision to destroy the property was considered a legitimate exercise of the Crown’s authority to protect national security interests during wartime.

Question 28

What did Parliament do in Burmah Oil Co. v. Lord Advocate?

Answer 28

Subsequently, the Parliament passed the War Damage Act 1965, which effectively reversed the court’s decision and validated the government’s earlier compensation scheme - the HoL having previously declared it lawful under the royal prerogative

Question 29

What are examples of the Royal Prerogative in the UK?

Answer 29

Appointment of the Prime Minister and Ministers.
Granting of royal assent to legislation.
Handling of treaties, foreign affairs, and matters related to war.
Dissolution and prorogation of Parliament.

Question 30

What does Walter Bagehot imply in his book? quotation

Answer 30

“A Republic has insinuated itself beneath the folds of a Monarchy”

Question 31

What are constitutional conventions?

Answer 31

Constitutional conventions are unwritten practices and customs that guide the behaviour of constitutional actors and fill gaps in the written constitution.

Question 32

What does John Austin say about constitutional conventions?

Answer 32

conventions can be seen as ‘the positive morality’ of the constitution (1832)

Question 33

What is the basic relationship between statutes and case law?

Answer 33

• Act of Parliament is supreme
• statute has effect over inconsistent common law rules
• but statute needs to be interpreted to see its meaning
• often done to make it consistent with common law
  (where possible…)

Question 34

Constitutional statutes

Answer 34

Constitutional statutes refer to laws that are considered fundamental to the constitutional framework of a country.

Question 35

What did the case Thoburn v Sunderland City Council [2002] establish?

Answer 35

The case recognized a hierarchy of Acts of Parliament.
It distinguished between “ordinary” statutes and “constitutional” statutes.
Constitutional statutes cannot be impliedly repealed or modified by ordinary statutes.
This distinction ensures that fundamental principles or structures within the UK’s constitutional framework are safeguarded and require explicit action by Parliament to be amended or repealed.