WS 1 - Constitutional Flexibility

Question 1

Define ‘constitution’: More a general idea than a precise legal concept (Alder). A set of rules and principles which

Answer 1

a. Define a state’s fundamental principles
b. Establishes the framework of the government of the state; and,
c. Guarantees rights and freedoms to citizens
d. Dicey: “All rules which directly or indirectly affect the distribution and exercise of the sovereign power in the state.”

Question 2

UK Constitution is derived from which 4 sources?

Answer 2

a. Legislation
b. Case law
c. Constitutional conventions
d. The Royal Prerogative

Question 3

What is the argument of the essay?

Answer 3

Due to its uncodified nature, the UK constitution demonstrates a fairly high degree of flexibility. It is relatively easy to change aspects of the UK constitution via normal legislative procedures with no special or complex arrangements being required for constitutional amendments.

Question 4

How does statute make the constitution flexible?

Answer 4

There are no special powers or other arrangements needed to pass laws that will change the constitution. Rather, Parliament can change the constitution merely by enacting a statute via the ordinary legislative process (i.e. a simple majority in Parliament and Royal assent). Therefore arguably easier for the UK constitution to change and evolve.

Compare with US where constitutional amendments require 2/3 majority of congress and 3/4 support from the individual states. Since 1789 have been only 27 amendments, many have failed, e.g. desecration of the flag

Question 5

Examples of ordinarily-enacted statutes which have made fundamental changes to the UK constitution?

Answer 5

Bill of Rights 1689
Act of Settlement 1701
Acts of Union 1706-1707
Parliament Acts 1911 and 1949
Government of Ireland Act 1920
European Communities ACt 1972
Police and Criminal Evidence Act 1984
Public Order Act 1986
Scotland Act 1998
HRA 1998
Constitutional Reform Act 2005
Parliamentary Voting Systems and Constituencies Act 2011 
Fixed Term Parliaments Act 2011

Question 6

Bill of Rights 1689

Answer 6

Imposed limitations on the Crown’s powers to interfere with Parliament. Strengthened Parliament’s powers.

1. Agreement of Parliament on any new taxes
2. No standing army without the consent of Parliament
3. Freedom of speech in Parliament, not to be questioned by the courts
4. Freedom to petition the monarch without fear of retribution
5. Removed the power of the monarch to arbitrarily suspend acts of Parliament
6. Parliament should meet on regular basis
7. Monarch will not interfere

Question 7

Acts of Settlement 1701

Answer 7

Prohibited Catholics from ascending to throne and provided security of tenure for judges (constitutional independence of judiciary)

Question 8

Acts of Union 1706-1707

Answer 8

United England and Scotland under single Parliament of GB. Preserve separate Scottish church and legal system.

Question 9

Parliament Act 1911 and 1949

Answer 9

Enabled legislation to be enacted in some circumstances without the consent of the House of Lords - cannot reject a money bill, and power limited to delaying to 2 years on other bills

Question 10

European Communities Act 1972

Answer 10

Incorporated EC law into the UK legal system

Question 11

Police and Criminal Evidence Act 1984

Answer 11

Provides the police with extensive powers of arrest, search and detention, but also contains important procedural safeguards to ensure that the police do not abuse such powers.

Question 12

Public Order Act 1986

Answer 12

Allows limitations to be placed on the rights of citizens to hold marches and meetings in public places

Question 13

Scotland Act 1998

Answer 13

Devolved power away from the Westminster Parliament to Scotland

Question 14

Human Rights Act 1998

Answer 14

Incorporated the European Convention of Human Rights (ECHR) into UK law.

Question 15

Constitutional Reform Act 2005

Answer 15

Transferred Lord Chancellor’s powers as head of the judiciary to the Lord Chief Justice and permitting the House of Lords to elect its own speaker. Created a Supreme Court (to replace the Appellate Committee of the House of Lords) and created the Judicial Appointments Commission to oversee the appointment of judges.

Question 16

Parliamentary Voting System and Constituencies Act 2011

Answer 16

Number of MPs in House of Commons from 650-600

Question 17

Why is case law a source of flexibility in the constitution?

Answer 17

By its nature it is flexible - wide discretion of judges/courts in deciding cases, reflect changing social, economic, political and moral standards of society.

• Judicial interpretation of statutes
• Development of Common Law
• Constitutional Conventions

Question 18

Judicial Interpretation of Statutes

Answer 18

Judges in their interpretation of Acts of Parliament may make decisions that add new concepts to, or clarify areas of our constitution. E.g. R v Secretary of State for Transport, ex p Factortame (No.1) and No.2: House of Lords effectively suspended the operation of an Act of Parliament in conflict with EC law.

Question 19

Thoburn v Sunderland City Council [2002]

Answer 19

LJ Laws suggested obiter that there is a hierarchy of Acts: ordinary and constitutional statutes.

Question 20

Residual Freedom

Answer 20

Unless the law clearly prohibits it, a citizen is free to do/say whatever he wishes.

Question 21

Actions of the state need legal authority

Answer 21

State officials may not take action without legal authority to do so, and may not act arbitrarily E.g. Entick v Carrington, the court found that the Secretary of State had no legal authority to issue such a general arrest warrant.

Question 22

Legal disputes to be resolved by the judiciary

Answer 22

Case of Prohibitions 1607 - held that the monarch may not make arbitrary rulings to decide legal matters, and that such disputes must be resolved by a court of law.

Question 23

Habeas Corpus and individual liberty

Answer 23

The right of an individual to mount a legal challenge against unlawful detention by the state. (Art 5 HRA 1998 - this principle is now also enshrined in statute)

Question 24

Belmarsh Case [2005]

Answer 24

House of Lords held that detention without trial under Anti-Terrorism, Crime and Security Act 2001 was unlawful and a breach of ECHR.

Question 25

Right to a fair hearing

Answer 25

The courts developed the ‘rules of natural justice’, providing that decision-makers should be unbiased and allow each party to put their case properly (As of Art 6, Sch1, HRA 1998, this principle is now also enshrined in statute)

Question 26

Parliamentary Supremacy

Answer 26

The notion that the courts will not question the validity of an Act of Parliament is rooted in a rule developed by the courts, called “Enrolled Act” rule. Edinburgh & Dalkeith Railway Co v Wauchope (1842)
And Pickin v British Railways Board [1974] – courts developed and applied “enrolled act” rule which states that once an Act has been entered onto the Parliamentary roll, the courts will not question its validity or hold it to be void.

Question 27

Judicial Review

Answer 27

JR is the mechanism by which the courts ensure that the Government and public bodies act within the powers they have been granted by Parliament. The power of JR allows the High Court to influence the UK constitution by holding the state to account for its actions, preventing it from acting arbitrarily.

Question 28

St Helens Borough Council v Manchester Primary Care Trust

Answer 28

May LJ said the function of court in JR is to see that decisions of public bodies are “lawful, rational and reached by a fair process”.

Question 29

How do Marshall and Moodie define constitutional conventions?

Answer 29

“Rules of constitutional behaviour which are considered to be binding upon those who operate the constitution but which are not enforced by the law courts”

Question 30

Examples of constitutional conventions

Answer 30

i. Monarch plays no active role in matters of government and legal powers vested in monarch are exercised on her behalf by the elected government
ii. Monarch on advice of PM will not refuse Royal Assent
iii. Monarch will appoint as PM the person who is best able to command the confidence of the HoC
iv. IMR – Govt ministers responsible to Parliament both for the running and proper administration of their respective departments, and personal conduct. No conflict of interest. Lord Carrington resigned in 1982 after invasion of Falkland Islands
v. CCR – Cabinet collectively responsible to Parliament for the actions of the Government as a whole and the Government must retain the confidence of the House of Commons. A Govt defeated on vote of confidence in HoC must resign (e.g. Callaghan’s govt 1979)
1. Cabinet must be united in support of Govt policy, so cabinet member must resign if disagrees – Robin Cook and Clare Short on Iraq war.
2. Cabinet discussion must remain secret
vi. Salisbury Principle – Unelected House of Lords will not reject legislation that gives effect to important manifesto commitment of govt
vii. Members of the judiciary do not play active part in political life
viii. Ministers and Members of Parliament do not criticise in public individual members of judiciary.

Question 31

Why have conventions developed?

Answer 31

i. Limit wide legal powers of the monarch without need for major constitutional upheaval
ii. To enable the constitution and the govt to operate effectively and flexibly
iii. To ensure that the Government is accountable to Parliament for its actions
iv. To maintain the separation of powers between the different branches of state

Question 32

Madzimabuto v Lardner-Burke

Answer 32

Rhodesia issued unilateral declaration of independence. UK passed Southern Rhodesia Act 1965 which declared that Southern Rhodesia remained part of the UK’s dominion territories. The validity of the Act was challenged on the basis that there was an established convention that the UK Parliament would not legislate for Southern Rhodesia without the consent of the Rhodesian Government. Privy Council refused to enforce the convention and held that Parliament could pass legislation which ran contrary to an existing convention.

Question 33

AG v Jonathan Cape

Answer 33

AG sought injunction to restrain the publication of Crossman’s diaries. Publication did not come within Official Secrets Act. AG sought to rely on the convention of CCR. High Court refused to grant an injunction preventing publication due mainly to the amount of time which had elapsed between the period covered by the diaries and the date of publication. COURT WILL NOT ENFORCE CONVENTION!!!

Question 34

Dicey’s definition of Royal Prerogative

Answer 34

“the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown…Every act which the government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.”

Question 35

Areas of RP

Answer 35

i. Foreign affairs
1. Declarations of war and deployment of troops
2. Recognition of foreign states
ii. Domestic affairs
1. Giving of Royal assent to bills
2. Summoning of Parliament (following the Fixed Term Parliaments Act 2011, the power to dissolve Parliament is no longer an aspect of the RP)
3. Appointment and dismissal of government Ministers, including the PMs
4. Defence of the realm (deployment of armed forces within the UK)
5. Pardon and mercy
6. Granting public honours

Question 36

Arguments against the UK having a high degree of flexibiilty

Answer 36

Statutory repeal of constitutionally significant acts is practically difficult

Statute enactment can be slow - huge pressures on parliamentary time, elective dictatorship etc

Certain constitutional conventions are deep rooted

Question 37

EU impact

Answer 37

Essentially bound by law from Brussels

Question 38

EU impact

Answer 38

Essentially bound by law from Brussels