1.1 The Constitution

Jobs of judges:

1. Make decisions in court
2. Interpret and apply laws placed by Parliament

Judicial precedent

An earlier court decision that influences decisions that come after it

Example of judicial precedent

R vs R - 1991
- Criminal law case
- Husband was prosecuted for rape of spouse (made this crime)
- Law was passed in court, not Parliament

key historical documents

• Magna Carta 1215

• Bill of Rights 1689

• Act of Settlement 1701

• Acts of Union 1707

• Parliaments Acts 1911 and 1949

Magna Carta (1215)

• signed by King John 1215 - principles of rule of law

• nobody could be deprived of their liberty and property w/out Parliamentary consent

• monarch cannot lock people up without legal consent

• King alone cannot raise tax

• few parts are still law - principles of clauses (1,9,29)

• HRA 1998 by Blair - nods towards MC

Bill of Rights (1689)

• Parliament offered Crown to James II daughter Mary + husband William of Orange (Protestant)- had to accept Bill of Rights - gave legal force to ‘certain ancient rights and liberties’ - idea of constitutional monarchy

  • summoning of regular Parliaments

  • fair elections

  • no taxation w/out consent of Parliament

  • Parliamentary freedom of speech

    • inside Houses of Parliament - MPs - absolute freedom of speech

    • (2011 Ryan Griggs premier league footballer situation- Sir John Hemming rebuked him in House of Commons)

Act of Settlement

• (1701)

• Parliament - authority to determine succession to throne

• confirmed Judicial Independence - judge can be removed on agreement of both Houses of Parliament

  • used by DCam 2013 - Succession to Crown Act

    • remove system of primogeniture (younger son can displace elder daughter in line of succession)

    • DCam changed March 2015 - monarch can marry a Catholic

Acts of Union (1707)

• united England, Scotland and Wales so had same Parl

• had had same monarch since 1603

• created UK, but independence of Scottish law - preserved

• 1801 - united Ireland into UK

• 1921 - partition - but NI still part of UK - 6 counties NI, 26 in ‘Dominion Status’ (Republic)

• 18th September 2014 - Scotland independence? - No 2 million, Yes 1 million (SNP want it repealed)

  • after Brexit (most Scot + NI Remain) - Sturgeon wanted another ref

• 1997 - Blair formed Scottish government

Parliamentary Acts 1911 and 1949

• 1911 Parliament Act

  • PM pick general election date at least every 5 yrs

  • remove perfect bicameralism (Lords lost right to veto and cannot amend financial bills)

  • only delay other Bills for max 2 years

• 1949 Parliament Act - reduced delay to 1 year

• 2 Acts - democratic legitimacy of Parliament - primacy of HOC over HOL

nature of Constitution

• unentrenched

• uncodified

• unitary

• AV Dicey (authoritative work) ‘an introduction to study of law of constitution’ in 1885 - ‘twin pillars’ of parliamentary sovereignty and the rule of law

5 main sources of the constitution

statute law, common law, convention, authoritative works, treaties

five main sources of constitution - Statute Law

• Acts of Parliament - every one - source of constitution

• Bill needs to have passed HOC, HOL, had Royal Assent

• e.g., Parliament Act 1911- removed HOL right of veto, instead HOC is superior

• since Blair (1997), multiple reforming Acts led to further development of Constitution

• highest level of law since Brexit

five main sources of constitution - Common Law

• judge-made law

• When statutes- unclear, judiciary realise precedents can reach common law

• give judgement and explain why they made them - published and said verabally

  • e.g., Gina Miller article 50 case - 2017, Brexit; May PM at the time, wanted to trigger article 50 of Lisbon Treaty - Miller made legal challenge to UK government's authority to trigger Article 50 without parliamentary approval; early 2017, judges found in Miller’s favour

  • e.g., R vs R 1991 - illegal for a man to rape his wife - abolishing the marital rape exemption.

five main sources of constitution - Conventions

• unwritten rules/customs/traditions

• no sanction if not followed, persuasive

• e.g., Salisbury Convention, developed after WW2 into parliament - HOL will not vote against what was in gov manifesto at election

• one hasn't lasted - e.g., Blair passed convention - parliament must approve country going to war or taking military action – 18^th March 2003 – 412 voted yes – many labour MPs did not vote in favour – 69 in labour party abstained

  • DCam followed - 285 beat 272 - could not continue in Syria- Aug 2013

• Kilmuir Convention - Politicians should not criticise judges when they make decisions, broken various times in modern day e.g, Gina Miller article 50

five main sources of constitution -Authoritative Works

• historical works seen as influencial

• useful guide but lacks backing

  • e.g., Walter Bagehot - 1867 – English constitution – established principle of role of PM and cabinet – the PM was the ‘primus inter pares’ – first among equals

  • e.g.2, Erskine May 1844 – working manual on how HOL and HOC function

  • e.g.3, AV Dicey 1885 - ‘twin pillars’ of constitution

• differs from US - President higher authority

five main sources of constitution - Treaties

• agreement signed between 2 or more countries

• if UK signs with another country, part of royal prerogative (residual powers of crown) - but not part of UK law until passed in Parliament

• Whilst UK was in EU, if treaties got through parliament, then it became law

type of constitution in UK

Uncodified - not written
Unentrenched - easy to change

Example of constitution being easy to change:

Firemans Act 1977 - law quickly changed on legality of handguns after Dunblane Massacre

unitary system

System of government in which all power is invested in a central government.

Parliamentary Sovereignty

- No higher form of law than act of Parliament
- Rules supreme
- Can create, amend or repeal any law

Example of law which has been repealed:

- European Communities Act 1972 - repealed by Johnson when left EU

Rule of Law

- Everyone is equal before the law
- Everyone has the right to a fair trial (presumed innocent until proven guilty)