The Constitution - Nature and Sources of the UK Constitution

the nature and sources of the uk constitution (1.1), how the constitution has changed since 1997 (1.2), the role and powers of devolved bodies in the uk and the impact of devolution on the uk (1.3), debates on further reform (1.4)

define constitution

laws and fundamental principles which establish the distribution of powers within a political system, relationships between institutions , the limit of govt jurisdiction and the rights of citizens

Functions of the Constitution

• provide legitimacy to those in power
• protect freedoms, restrain the behaviour of those in office
• encourages stability in govt and office

define constitution

laws and fundamental principles which establish the distribution of powers within a political system, relationships between institutions , the limit of govt jurisdiction and the rights of citizens

Functions of the Constitution

• provide legitimacy to those in power
• protect freedoms, restrain the behaviour of those in office
• encourages stability in govt and office

How is the uk constitution evolving

power moving away from the monarch and moving to parliament

this development is demonstrated through a number of key historical documents

Magna Carta 1215

a constitutional document which contributes to the UK constitution but is not a founding document

• It's habeus corpus notion is often cited as part of the constitution and is an international symbol of liberty

Bill of Rights 1689

outlined specific constitutional and civil rights and gave parliament power over the monarchy

established principles of frequent parliaments , free elections and freedom of speech within parliament ( PARLIAMENTARY PRIVILEGE)

Act of Settlement 1701

laid out the foundations of a constitutional monarchy and strengthened the guarantees for ensuring a parliamentary system of government

Act of Union 1707

united england and scotland under one parliament

led to the creation of the united kingdom of great britain

The Parliament Acts 1911

sought to remove the power of the house of lords to reject money bills , and to replace the Lords' veto over other public bills with the power of delay

The Parliaments Act 1949

further reduced the Lords' delaying powers to one year - these acts both limit the power of the House of Lords in relation to the House of Commons

European Communities Act 1972

brought the uk into the european union , gave eu law supremacy over uk national law

The Nature of the UK Constitution

Uncodified, unentrenched, unitary, twin pillars of parliamentary sovereignty and the rule of law

Define codified

Key constitutional provisions are provided for within a single written document

Define uncodified

UK constitution is described as ‘partly written and wholly uncodified’ - not contained within a single written document

Define unentrenched

To change it does not require an extraordinary procedure - can be done by a simple vote in parliament

example of how unentrenched constitution is beneficial

1996 gun massacre -was debated by british parliament and 1997 a new law called the firearms amendment act was passed - banned all handguns except those used for hunting

1996 Dunblane Gun Massacre - benefits of an uncodified constitution

1996 Gun Massacre - then - ruling Conservative Party tasked senior judge Lord Cullen with a major public inquiry - recommended stricter limitations

Change in Government to Tony Blair’s government in 1997 and in November 1997 the UK enacted a full ban on the private ownership of handguns

Significance ?

Since the 1996 massacre - the UK has experienced no school shootings in comparison to USA which have limited rules on gun control

Scottish Sun Snowdrop campaign - more than 700,000 signed a petition which led to the government banning the private possession of handguns

Define Unitary

sovereignty is located as westminster and this is where ultimate power lies -> this has been challenged by devolution and the EU

Twin Pillars of the UK constitution

Parliamentary sovereignty and Rule of law

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What is Parliamentary sovereignty?

No parliament can bind it's successor, legislation cannot be struck down by a higher body such as the supreme court

What is the Rule of Law?

Everyone is entitled to a fair trial and should not be imprisoned without due process, all must obey the law and are equal under it - under ROL everyone is equal

Tony Blair (2006 - 07 ) - example of how everyone is held accountable under the Rule of Law

2006-07 - Tony Blair was interviewed under caution by the police and was questioned three times as a witness

Broke the 1925 Honours (Prevention of Abuses) Act respectively

Ruth Turner (close aide) - arrested

Labour’s chief fundraiser Michael Levy (‘Blair’s cash point’) - arrested

This was under the Cash for Honours scandal - 2006 - 7 concerning the connection between political donations and the award of life peerages

Example of how PM’s are held accountable under Rule of Law - Boris Johnson

Partygate - first reporting November 2021 by the Daily Mirror of 10 Downing Street staff gatherings during the 2020 Christmas season

Boris Johnson - first PM to be questioned under caution by Police since Tony Blair

Metropolitan Police - as part of its investigation into allegations of 12 events in breach of coronavirus rules - six of which Mr Johnson is reported to have attended

This was done through ‘written statements under caution’

Significance ?

• Tony Blair said he would ‘resign in such event’ when questioned by police during the cash for honours scandal in 2007

Recall of MP's Act (2015)

The act introduced a process by which an MP can lose their seat in the House of Commons if there is a successful petition to recall them

MP Recall Act 2015 in practice - Christopher Davies (2019)

Tory MP convicted of expenses fraud

• more than 10,000 voters in Chris Davies Brecon and Radnorshire seat backed the move - exceeded the required 5,303 voters

There was then a by election in the seat.

Davies admitted that in March 2016 he made a claim under the MP’s allowances scheme and provided an invoice that he knew to be ‘false or misleading’

Five main sources of the UK constitution

- statute law

- common law

- conventions

- authoritative works

- treaties (inc European union law)

Define Statute Law

Law made by UK Parliament , all acts start as bills introduces in either the Commons or the Lords

One of the most important sources of the UK constitution , as statute law overrides other laws because of parliamentary sovereignty

When a bill has been agreed by both Houses of Parliament and has been given Royal Assent by the Monarch it becomes an Act

European Community Act 1972 - Example of Statute Law

The European Communities Act 1972 - the piece of legislation that brought the UK into the European Union ; it gives EU law supremacy over UK national law.

Define Convention

A practice which is followed , not technically binding , the passing of a statute law could easily overrule a convention

Salisbury Convention

The Convention ensures that major government bills can get through the Lords when the Government of the day has no majority in the House of Lords .

This meant that the House of Lords would not vote at the 2nd or 3rd reading against any bill that was outlined in the Government’s manifesto

In Practice , this meant that bills in the governments manifesto were very likely to become Acts of Parliament

Sewel Convention (1999)

The UK Parliament ‘will not normally legislate with regard to devolved matters without the consent’ of the devolved legislatures. This convention applies when UK legislation:

• changes the law in a devolved area of competence
• alters the legislative competence of a devolved legislature

Significance?

The Sewel Convention is not legally binding . It was put into law in the Scotland Act 2016 and the Wales Act 2017

Supreme Court judgement on Scottish Independence Referendum (November 2022) - example of how Sewel Convention is not legally binding

November 2022 - Supreme Court rules that the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence

Significance ?

The SC judgement reinforces the Supreme Court statement in 2017 that since the Sewel Convention remains just a political convention , ‘policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary’

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This means that devolved governments cannot turn to the courts to enforce the legislative consent convention - UK parliament can pass bills without devolved consent

Example of a convention being ignored resulting in constitutional crisis - People’s Budget 1909

The People's Budget - the House of Lords refused to vote for the people’s budget

Resulted in a major constitutional crisis resulting in the Parliament Act 1911

This meant that House of Lords could only delay legislation for two years.

Common Law

Operates a common law system which combines the passing of legislation but also the creation of precedents through case law

‘Judge - made law’

An example of common law?

Entick V Carrington

laid down that public officials have no right to search the home of civilians

Significance?

Established the principle that prerogative powers of the monarch and government are subordinate to the law of the land

It guarantees that government officials acting in an executive capacity ‘cannot exercise public power unless such exercise of it is authorised by some specific rule of law’.

Redefined the scope of state power and established that individuals have a basic right to privacy.

Process of passing laws in Parliament

1 - green paper report, vague and contains multiple policy options

2 - white paper, draft bill and contains concrete policy proposals

3 - first reading, a bill is formally proposed and read

4 - second reading, one of commitees of parliament take a closer look

5 - commitee stage, chairman can decide on amendments

6 - report stage

7 - third reading , bill is voted, is sent to house of lords for pingponging if successful

8 - goes back and forth which is known as pingponging and both houses can make amendments , finally is sent for royal assent

What are authoritative works?

Works written by experts describing how a political system is run, which are not legally binding but are taken as significant guides.

Example of Authoritative Works

An example is Erskine May - considered to be the authoritative guide to parliamentary procedure

‘Erskine May Parliamentary Practice’ often referred to as ‘the bible of parliamentary procedure’ is both an iconic and practical publication

The speaker regularly cites Erskine May in his rulings and it is often referred to during debate in the Commons

Examples of referendums which have made constitutional amendments

• AV referendum 2011 (67.9% in favour of retaining first past the post)
• Scottish independence Referendum 2014 ( 55% in favour of remaining in the UK)
• European Union Referendum 2016 (51.8% in favour of brexit)

Define Royal Prerogative

• key convention - counts as a source of the british constitution
• rp powers are powers traditionally held by the monarch but are now in effect
• exercised by govt and ministers
• RP powers are not subject to clear scrutiny by parliament - give an example