Week 1- Nature and sources of the constitution (conventions)

Question 1

What was Ivor Jennings 3 rules about conventions?

Answer 1

Did the political actors feel they were bound by the rule?
Was there precedent for the rule?
Is there a reason for the convention?

Not all criteria must be satisfied for a convention to exist, as there may not have been the political situation previously for the convention, but often the more significant conventions are written down ie ministerial code and therefore may have developed overtime and be guided by precedent.
-Resonates with Jaconelli’s contention that conventions are rules which ‘pull themselves up by their own bootstraps’

Question 2

Who talks of a spectrum of conventions and what do they say?

Answer 2

• Barber refers to conventions lying on a spectrum, which suggests that whilst overall no convention is enforceable by the law, conventions retain different levels of constitutional significance
• Some are more straightforward in their use whilst others are much more open to interpretation by political actors and therefore carry a certain level of ambiguity, often owing to the fact they are unwritten.

Question 3

Who’s essay makes arguments for a written constitution and what are the 3 arguments in favour of a written constitution?

Answer 3

J King.

• Prompts parties to express their views on particular rights, which may improve the democratic process as the electorate may have a more comprehensive understanding of what their MP stands for.
• There are many areas of our constitution open for discussion (Lords reform, voting reform, executive and military control) which would be more carefully considered when debating a written constitution in more detail.
• There is too much of our written constitution accepted with acquiescence or ratification rather than authorship; logistically it would be impossible to codify or write out our whole constitution, but the most fundamental aspects should be written out.

Question 4

How does King propose a constitution become written?

Answer 4

• Joint authorship of a written constitution which encompasses the most fundamental rights, in which each matter is debated and deliberated on carefully by a constituent assembly.
• Democracy remains a central part in allowing us to self-govern, and the electorate has a role in electing those members who they feel are best suited to contribute to a written constitution.
• The written constitution would be done by a constituent assembly with their own legislative powers

Question 5

What body does King propose would create the written constitution and what 3 things does he expect them to be?

Answer 5

• A constituent assembly with their own legislative powers
• The assembly should be 1) representative of the people 2) debating the relevant questions and 3) have real authority in that their decisions be respected by those in power

Question 6

Why does King feel that parliament is not best placed to draft a written constitution?

Answer 6

The public should be playing an active role in the creation of a written constitution; parliament is too easily dominated by the executive or leadership is too heavily split.
-Members of parliament certainly should be involved in the writing of our constitution, but not sitting as MPs in parties voted on by our electorate, to avoid them being bound by conventions like joint ministerial responsibility or cabinet confidentiality

Question 7

What 3 main objections are made there against a written constitution?

Answer 7

1) Package constitution (Barber who disagrees with Hailsham and Scarman)
2) Movement towards a more legal constitution shifts previously political matters towards more legal matters, if the constitution was to be codified rather than just written; there no guarantee that the courts are better vindicators of rights than parliament, and amendment/ flexibility of these political matters through the political process is not possible under an entrenched codified constitution.
3) Formally writing down many aspects of the constitution which already exist (albeit in unwritten or partially written forms) may give a facade of change; many aspects of constitution already ‘written’ eg conventions and therefore this hardly increases the power of the judiciary. (Barber)

Question 8

What is the ‘package constitution’ and why does Barber disagree?

Answer 8

• The package constitution as envisioned by Hailsham and Scarman is designed to codify aspects of the constitution in a written bill of rights, as well as limiting parliaments legislative ability within the entrenched constitutional laws.
• The package constitution would likely be voted on via referenda, but rather than voting in each individual aspect of the constitution, the electorate would be faced with an ‘all or nothing’ vote in which they are unlikely to be involved in the contents of the constitution which they are given the vote on
• People are likely to favour some aspects, and show acquiescence towards other aspects, and there’s no correlation between supporting unconnected aspects of the constitution which may need reforming and codifying.

Question 9

What does Griffith think about the ‘package constitution’?

Answer 9

He disgarees with Scarman and Hailsham because he recognises the difficulty in determining the contents of a written constitution, with different groups of people placing different levels of importance on different rights.

Question 10

What does Tomkins think is the central aspect of a political constitution and how does he describe it?

Answer 10

Ministerial accountability- ‘a simple and beautiful rule’. Political matters within a political constitution allow OS to be upheld, but the principle of legality means that parliament squarely faces up for its decisions and accepts the political cost.

Question 11

What does Bellamy regard as the benefits of a political constitution in comparison to an entrenched constitution?

Answer 11

• Our constitution never escapes democracy in that ‘it is never beyond question or amendment by the principal political institutions, acting through ordinary political (and for the most part legislative) processes.
• It is the day-to-day political processes which are inherently flexible and therefore integral to a political constitution, as the constitution is always within the reach of parliament in a way which is impossible under an entrenched and codified constitution.

Question 12

What do Gee and Webber focus on when comparing legal and political constitutions?

Answer 12

The comparative rigidness of legal constitutions compared to political ones.

-Gee and Webber illustrate the differences between legal and political constitutions by comparing the relative powers of political actors in both. Whilst under a legal constitution, many potentially political subjects such as rights become a matter for the courts and are not easily changeable through the normal political process, owing to the comparative rigidness of a more legal constitution, whilst a political constitution has ‘no fixed constitutional boundaries’ for political actors in parliament, in that they are free to make and unmake and law they desire (PS).

Question 13

What does King recognise to be the trade-off in moving towards a written constitution?

Answer 13

The apparent increased clarity that might be gained from writing down much of the constitution will come at the price of increased judicial power via interpretation of the laws of the constitution, and a rigid amendment process; two things that could pose serious threats to a sovereign parliament.

Question 14

What are the facts and significance of Simms v Secretary of State for the Home department?

Answer 14

Facts- Simms and another serving a life-sentence for murder, under prison act 1952 they were prohibited from taking part in spoken interviews if they were to be published.

Significance- Principle of legality: -this means that ‘parliament must squarely confront what it is doing and accept the political cost’ even though there exists only political rather than legal restraints on their power.
- “in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general of words were intended to be subject to the basic rights of the individual.”

Question 15

What are the facts and significance of Thoburn v Sunderland City council?

Answer 15

Facts- weights and measures act 1985 inconsistent with laws sourced under the ECA 1972 act

Significance- constitutional statues v ‘ordinary’ statutes. Hierarchy of laws exist in which constitutional statues like ECA 1972, HRA 1998, PRA 2005, Bill of rights etc cannot be impliedly repealed. The common law understanding that all statues can be repealed impliedly was rejected
-Provides the protection of fundamental rights in the same way as a written constitution, but ‘preserves and sovereignty and flexibility of our uncodified constitution’.

Question 16

What are the facts and significance of R( Buckinghamshire) v transport secretary?

Answer 16

Facts- HS2 related, environmental directive should’ve followed the work towards the high speed railway

Significance- there exists some hierarchy within the higher level of constitutional statutes as mentioned in Thoburn.

• The enactment of the ECA 1972 did not mean that it was intended by parliament to abrogate well-established principles.
• Lord Neuberger and Mance held that, following Factortame, the ECA 1972 does not require national courts to accord primacy to EU law over all domestic laws.
• -“Instead, the extent of EU law’s qualified primacy is, on this analysis, delimited by other constitutional measures—including (some) other “constitutional” legislation, and perhaps (some) common-law constitutional rights and principles” (Elliot)

Question 17

What does entrenchment mean?

Answer 17

Entrenchment means to give special protection to fundamental rights, such as those contained in codified constitutions like in the USA. They require a special amendment process which is more rigorous than changing statutes in the UK or changing the understanding of UK conventions.
-This process may require referenda or 2/3 senate majorities; therefore amendment is subject to new legal restraints

Question 18

What are checks and balances?

Answer 18

The way in which different institutions of the government limit the power of the others.
-In the US, this involves an extension of judicial power relative to those the UK, as judges of the Supreme Court are given powers of judicial review which include striking down legislation which is unconstitutional.

Question 19

What is collective responsibility (convention)

Answer 19

Ministers of parliament are bound by the decisions of parliament and must publicly accept them even if they privately disagree; public disagreement calls very often for resignation, although this isn’t enforceable by law

Question 20

What is the ministerial code?

Answer 20

Politicians must give accurate information, and knowingly misleading parliament should lead to resignation being offered. Furthermore the ministerial code is enforced by the Prime minister which sets out behavioural obligations of all ministers. Conventions appear to lie on a spectrum of how enforceable (or not) they can be.

Question 21

What is the Sewel convention?

Answer 21

Westminster parliament are happy to allow self-regulation by the government of Scotland without getting involved, after devolution to Scotland under the (Scotland act 1998 s28(8)) ; Westminster parliament normally won’t get involved without a legislative consent motion. This became legislated in the Scotland act 2016 s28(8) which was amended in the original Scotland act 1998

Question 22

What is the Salisbury convention?

Answer 22

The house of lords will not block the second or third reading of a law contained within a parties manifesto, effectively allowing a majority party to eventually pass any law without contention, so long as it is mentioned in their manifesto.
-The judges then cannot challenge such legislation, they can only enforce it, whereas a checks and balances approach (as in the USA) would allow courts to strike down legislation which they deem unconstitutional

Question 23

R(Miller) v Secretary of State for exiting EU facts and significance?

Answer 23

Facts- The devolved territories were protected from Westminster’s powers to legislate for them by political factors alone; the withdrawal bill which would lead to legislation on devolved or non-reserved matters did not legally require a legislative consent motion to be agreed.

Significance- “therefore, courts are neither the parents or enforcers of conventions. They are merely the observers”

• Strong arguments were made to show that the Sewel convention was recognised within the devolution legislation and was therefore of great constitutional importance
• It did not follow, however, that this changed the political status of conventions, and their enforcement still was not a matter for the courts to adjudicate directly on

Question 24

Re Amendment of the constitution of Canada

Answer 24

Facts- Convention existed in which Canada should seek the approval of its provinces before making constitutional change, which Canadian government initially did not do.

Significance- conventions, whilst not legally enforceable by the law, may be so important as to guide the behaviour of political actors even when they wouldn’t be faced by legal sanctions.

Question 25

Facts and significance of Madzimbamuto v Lardner-Burke

Answer 25

Facts- A convention existed that the UK would not legislate for self-governing colonies, which Rhodesia had declared themselves to be when implementing a UDI. They ignored the WMP act which allowed WMP to dismiss the Rhodesian government and continued to rule. Madzimbamuto was detained as someone likely to cause public disturbance (legally) but the extension of the emergency detention powers, by a government which had been dismissed as improper by WMP, was in fact illegal.

Significance- It was held that the convention, whilst significant in the running of Rhodesia and the relationship between the UK and its colonies, it was not legally enforceable, and it was acceptable for the UK to dismiss the Rhodesian government, thereby voiding all subsequent governmental decisions.
-“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.” And yet under conventions the UK parliament could still carry out such things, the courts could not hold them to be illegal.

Question 26

A-G v cape facts and significance

Answer 26

Facts- A-G attempting to block the publication of parliamentary discussions in an ex-MPs memoirs. Held that if it violated the convention of ministerial confidentially it would violate public policy and be illegal under the common law. 10 years had passed however and therefore publication was accepted.

Significance- -The case shows the inability for the courts to enforce a political convention, although had the publication been in conflict with PUBLIC POLICY UNDER THE COMMON LAW; specifically if the publication undermined cabinet confidence based on public policy grounds.

• The convention would only provide further reasoning for the decision under the common law. Again, conventions are not a matter for the courts; the preservation of the convention could be enforced under the common law relating to public policy, but not the convention itself, which is why publication was accepted because 10 years had passed since the cabinet discussions.
• There is a clear distinction here between the courts recognising a convention and actually enforcing it

Question 27

What parts of the Scotland act and government of Wales act recognise the sewel convention?

Answer 27

SA 28(8) and GOW s107 (6)

Question 28

What does Dicey say about conventions not being laws?

Answer 28

Dicey says in the ‘laws of the constitution’ that a rule is a law only if courts are willing to enforce it, the key is that they are not willing enforceable by the courts (conventions), therefore conventions aren’t laws

Question 29

What is the difference between a written constitution and a codified constitution/

Answer 29

A codified constitution is one single legal document of constitutional law, whereas a written constitution means that different measures of the constitution are available in written form.

• The UK does not have a codified constitution like the US, but is partly written; we have constitutional statutes which are written acts of parliament, conventions which may or may not be written, the common law which is unwritten but operates through precedence.
• Therefore the movement towards a written constitution has different constitutional implications to a movement towards a codified constitution

Question 30

What is the difference between constitutional law and the constitution?

Answer 30

Our constitution as a whole encompasses constitutional law ie statutes which have a recognised elevated status of importance, as well as conventions and common law principles. Our constitution evolves over time through the creation and abrogation of conventions, constitutional principles and practices, political processes and advancements, democratic changes and the creation and removal of constitutional statutes.
-Constitutional law is limited to acts of parliament which have constitutional status rather than representing all the aspects of our constitution.

Question 31

How do political constitutions hold the government to account?

Answer 31

• Behaviour of political actors is said to be guided by political conventions rather than legal obligations. There is a standard of behaviour expected of ministers, set out in the ministerial code, which include collective-cabinet responsibility, and cabinet confidentiality.
• If these conventions are breached by a minister, it is expected that the minister will resign from their role. If they choose not to, they are likely to face political backlash through both the media (constant media pressure and coverage), and more importantly the democratic process, where the electorate may be more likely to vote the MP out of parliament.
• There is no legal sanction available for ministers who breach these conventions, it remains a matter of politics rather than court adjudication.

Question 32

What article authors do I need to remember for this week?

Answer 32

Barber-Package constitution
J King- in favour of a written constitution
Griffith- hard to decide content of written constitution
Sir Ivor Jennings- 3 convention rules
Gee and Webber and the relative rigidness of legal/political
Bellamy- constitution never escapes democracy

Question 33

Why does J King argue that political parties should be involved in his ‘constituent assembly’ when he also argued that parliament itself is unable to lead authorship of a codified constitution?

Answer 33

• Political parties understand the intricacies of the constitution and the implications deriving from change, and whilst an often party-dominated parliament would not be appropriate to have ultimate authority over the authorship of the constitution, this shouldn’t preclude their involvement.
• The constituent assembly would have its own legislative power and therefore would not be subject to the veto or will of parliament, or more importantly, the executive.

Question 34

What were the important features of the 2017 GOW act and 2012 and 2016 Scotland act?

Answer 34

2017 Wales act moved Wales from conferred to reserved powers model, as well as creation of welsh revenue authority and similar fiscal powers to scotland

2012 scotland act- creation of Scottish revenue authority, fiscal powers ie levy 10p, fiscal borrowing power,

2016 Scotland act- Scottish parliament remains permanent part of the union, and will only be abolished subject to a referendum

Question 35

What does collective cabinet responsibility entail?

Answer 35

-This provides what is known as the ‘pay-roll votes’ for the government; cabinet ministers are expected to vote in accordance with the government to provide a sense of union and singularity, and in the event of a vote of no confidence, all cabinet ministers are expected to take equal responsibility and resign together, rather than any minister claiming he is less culpable because he voted against the government on a specific matter.

Question 36

Quotes/ ideas to remember from Gee and Webber?

Answer 36

‘no fixed constitutional boundaries’ for political actors in parliament, in that they are free to make and unmake and law they desire (PS), so long as principle of legality in Simms is observed.

Question 37

What examples of contentious areas of our constitution does Barber give to reject the idea of a written Constitution

Answer 37

• The fact that one person supporting an elected House of Lords will also support the commons deciding on military action, or someone favouring a fixed term parliament would also approve of judges striking down unconstitutional legislation.
• They are almost wholly independent ideas which should not be contained within one written document, voted on by a simple yes or no referendum; the approach that King suggests takes this into account, by suggesting joint authorship on the most fundamental aspects, without mere ratification of the whole document created by parliament. Even here, there will still be no ‘one size fits all outcome’ but that is inherent to any society due to political diversity

Question 38

What is the criticism of legally enforcing conventions which are currently politically enforced through subsequent parliamentary and public accountability?

Answer 38

• Much of the conventions are already written; for example ministerial accountability, which links the executive to the legislature, exists in the ministerial code more or less in written form.
• How could a court decide when an MP has failed to sufficiently answer a question, has failed to accept accountability for his department?
• The bulk of ministerial accountability would not effectively be enforced by the courts, as the remedies which they provide could not easily be determined; this is better regulated by the principle of legality and the electorate holding MPs to account through the political process.

Question 39

Important obiter dictum comments made in Madzimbamuto?

What quote from Griffith does this resonate with?

Answer 39

“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.

“The constitution of the United Kingdom lives on, changing from day to day, for the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.”

The inability of courts to strike down parliaments legislation as unconstitutional is qualified by parliamentary supremacy, backed up by the common law understanding of judicial obedience. All legislation owes its authority to this common law principle.

Question 40

What are the two strands of collective cabinet responsibility?

Answer 40

• Cabinet confidentiality- cabinet discussions are to be kept private to uphold the unity and solidarity of the cabinet, despite the inevitable expression of discontent within cabinet discussions
• Cabinet solidarity- MPs expected to support and argue in favour of MP decisions, as well as voting along executive lines, failure to do so results in resignation or loss of office.

Question 41

What is the argument for not engaging the Sewel convention with regards to Brexit withdrawal?

Answer 41

There had previously been no legislative consent motions sought when implementing changes to the competences of EU institutions, which the UK was and by virtue, Scotland, Wales and Ireland.
-Avoiding duplication of legislative efforts, illustrated in the Scottish continuity bill case.

Question 42

What convention was broken in the case of Madzimbamuto?

Answer 42

-The convention that the UK does not legislate for self-governing colonies was broken in this case, when the UK passed its own laws to dismiss the UDI passed by the Rhodesian government. The Rhodesian government ignored this act of parliament and continued to run as government,