Public - Core concepts of the Constitution

The constitution

• creates and constrains power

• allocates public power to different bodies

• defines rights and freedoms

Constitutional values:

• Effective government

• Accountability (those who exercise power are responsible for how they exercise that power in order to not abuse it for selfish means)

• Democracy (those who exercise power are responsive to the needs/views of the governed)

• Individual rights and freedoms (seeks to protect individuals rights and freedoms)

• Stability (seen as entrenchment opposite)

types of constitution:

No single written constitution e.g. US constitution

Uncodified constitution - found in many sources

Most are written down somewhere

uncodified UK constitution:

• Legislation

• Common law

• Royal prerogative

• Constitutional conventions

hierarchy of sources:

• Statutes are the highest form of law and can override common law and remove prerogative powers.

• Hierarchical highest is legislation

• Although common law isn't superior to parliament, you have to see how its principles act with parliament.

• Acts of parliament create many of the powers and constraints on governmental power and allocate governmental functions

examples of legislation:

1. Parliament Acts 1911 and 1949

2. Dissolution and Calling of Parliament Act 2022 - relates to the timing of general elections

3. Constitutional reform Act 2005 - created the UK Supreme court and separated it from the House of Lords

4. European Communities Act 1973 (now reappealed)

5. European Union (Withdrawal) Act 2020

6. Human Rights Act 1998 - gives a set of national rights and obligations in regards to human rights

7. Scotland Act 1998

Common law:

• Powers, constraints and principles developed by the courts

• Judges may modify institutional powers and relationships

• Power of the police to regulate the breach of the peace was founded in the common law

• All statutes are interpreted against the common law principles

R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 quote

“Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary”

prerogative powers

• residue of monarchical powers still in the hands of the crown and exercised on the behalf of people by government ministers

• It can be recognised by the Common law but doesn't depend on it for their existence

• Legislation may change them as parliament is sovereign to do so

examples of prerogative powers:

1. Royal assent to bills - final step in turning a bill into a law

2. Appointment of the Prime Minister - appoint whoever they wish to be prime minister

3. Appointment and dismissal of ministers

4. Dissolutions and prorogations of Parliament

5. Various powers exercised by ministers e.g. pardon, foreign affairs, honours and defence of the realm

constitutional conventions

principles which regulate relationships between different parts of the constitution itself or regulate the exercise of public power but they DO NOT have legal force.

Ivor Jennings on constitutional conventions

• constitutional conventions don’t have to be created by legislation, they grow up more organically as practices 

   --> metaphor: if you want to see the whole body, you need to see the flesh and bones

Jeffrey Marshall on constitutional conventions

It's no less than the major purpose of conventions to give effect to the principles of governmental accountability that constitute the structure of a responsible government

Albert Venn Dicey - constitutional theorist

• described the conventions, understandings, habits or practices of the constitution that provide you with a constitutional morality that applies to the use of legal powers.

• We have political and legal mechanisms

• We can talk meaningfully about something being lawful but not constitutional so we need to think about the legal and political constraints

• You might have legal power but be breaking legal conventions so it would be unconstitutional

education convention definition

heir to the throne must be able to engage in frank discussion with the government so they can be educated in government matters so that when they become king/queen, they are educated

powers and conventions:

• Royal assent to bills is always given automatically by the king; king isn't responsible for saying yes or no to acts of parliament because he is always following the powers of constitution

• Appointment of the prime minister; MP most like to command confidence of the commons which has a clear democratic rationale

sewel convention definition

convention created in terms of devolution; UK parliament shouldn’t normally legislate for a matter that has been devolved to other bodies - enables the effective functioning of devolving regions

what makes something a convention? - Jennings test

1. What are the precedents?

2. Did the actors in that precedent believe they were carrying out a rule?

3. Is there a reason for the rule?

ministerial responsibility:

• Transparency to parliament - minister had to explain what they were doing to parliament

• Resignation for failures - if you run the department badly, you would resign for your failures

• Political constraint on Government

• Rationale for this convention is a mixture of political accountability and strengthening democratic oversight of government action

individual ministerial responsibility

Government is responsible to parliament for their own conduct

unwritten rules

• Many conventions are written down somewhere

• Not created by the act of writing them down - exist independently

• Examples: Ministerial code, Civil service Code, Cabinet Manual

• Can crystallise very quickly if politicians want to 'create' a convention

constitutional monarchy

Many legal powers are powers of the crown but they are strongly constrained by constitutional conventions

The powers that stem from the monarch are constrained by constitutional powers and law

democracy:

• Parliament: House of commons + Lords, Members of House of commons are elected

• Elections: Can lose the faith of the House of Commons resulting in a vote of no confidence

• Referendums: Vote for or against specific policies, parliament frame the question before it is then put to the people

the government:

• Prime Minister leads the government under a parliamentary system

• Typically the leader of the party that currently holds power; you can have prime ministers who have never led/run a political campaign during the general election e.g. Boris Johnson

• Hard to hold the government to account as politicians within post can gain biased support from ministers

• Civil service are non-political administrators, they don’t change when government changes and are expected to act with honesty. They are subject to a civil service code and theres a permanent bureaucracy.

collective ministerial responsibility

responsibility that applies to members of cabinet and wider government; whilst they can express individual views, they must appear united when speaking in public

validity of acts of Parliament:

• No review of acts of parliament in the UK

• When a bill is passed it is put on the parliamentary roll

• British Railways Board v Pickin - dispute on whether it had been written on the parliamentary roll

• Uk courts will favour the latest act of parliament even if there is no express repeal - treated as an implied repeal

• True even if the earlier act stated it can't be repealed.

SOP: John Locke - Two treaties of Civil Government [1690]

• Separation of powers may be too great a temptation for the same people who make the laws then also carry them out so we separate them

• Therefore this makes it harder for power to be abused

SOP: Charles Montesquieu - The spirit of the laws [1748]

• Distinguished between legislative, judicial and executive powers of the government and said that they should be exercised by different persons.

• All would be lost if the same governing body were to exercise the three powers

• Against the tyranny of absolute monarchs

SOP: James Madison - checks and balances

• Separation of powers was necessary to stop tyranny by having checks and balances between each of the powers.

• By dividing up power, different institutions could call upon each other if power was being abused but checks and balances create tension between the different parties

• Indirect way of protecting freedoms

• Differs from Montesquieu as how far should apart should the factions be?

Criticism of separation of powers:

One of the key criticisms between the divisions of power is that, in a complex state, they can blur into one another and there is some conceptual confusion between the powers e.g. civil servant in government department hears a complaint about benefits being given are they correcting administration errors and executing laws or are they doing their job?

Eric Barendt - SOP

partial separation of powers to prevent arbitrary power; don't have to rely on a clear division as to achieve the aim of lack of abuse of power, you can do that through partial separation of institutions and functions

Nick Barber - SOP

matching tasks to bodies best suited to execute them; Positive constitutionalist, appropriate allocation of tasks will make the state work well and that's why we design different institutions in different ways

negative v positive constitutionalism

Negative constitutionalism = negative viewpoint that reflects constraint and there is worry about governmental power

Positive constitutionalism = sees government power positively and aims to find what benefits can arise through following the constitution

William Blackstone - “Balanced Government”

• Opposed the idea of having a separation of powers

• He argued for a balanced constitution; in the equilibrium between the different parts was when the constitution worked well

Walter Bagehot

• "the efficient secret of the constitution" … is "the close union, the nearly complete fusion" of the executive and legislative powers"

• Efficiency comes from a strong sovereign parliament

constitutional values

Each of the values have different purposes they are trying to achieve. Many negative constitutionalists are willing to trade away effective government to make it harder for power to be abused.

(Anderson) v Secretary of State for the Home Department [2003] AC 837

• before this case, it was the power of the Home Secretary to determine the time of a prisoner who was convicted of a life sentence for murder

• challenged on the fact it contradicted article 6 of the HRA

• /sentencing is judicial so on a functional basis, it should be allocated to a member of the judiciary

the rule of law

The rule of law is the public power; values that should be reflected in the legal system

ROL: Albert Venn Dicey

• The rule of law means the absolute supremacy of law over arbitrary power

• Strong focus on subjecting everyone to the same rules.

• Judiciary review in the UK only became popular in the 80s/90s

• Individuals shouldn't be punished without there being a legal basis for that punishment

• No exclusions to officials as they should be subject to the ordinary courts and law; equality before the law

Government must have a legal power: Entick v Carrington [1765]

• search and seizure of books and paper on property under executive warrant

• sued for trespass on property as no legal basis to conduct search

• Minister argued warrants were essential to government

• two arguments: not searching houses undermines government + unchallenged practice for years

• court rejected Minister’s arguments; entick successful

Government is subject to court orders: M v Home Office [1994]

• claimed asylum in UK and unsuccessful

• before being removed, new application made where government said person wouldn’t be deported

• filed order to fly person back to UK and Minister refused to obey that court order

• HOL: Minister could be held in contempt of court

• contempt against office of Home Secretary so up to Parliament to decide consequences

Government must not undermine the law: R (Corner House Research) v Director of the Serious Fraud Office [2008]

• investigation into allegations of fraud concerning British Aerospace and Saudi Arabia

• Director of Fraud office came under political fire as Saudi Arabia said that if they continued, they would withdraw the anti-terrorism agreement.

• Director of Fraud Office removed the investigation. Unlawful to withdraw investigation as it goes against legal principles

• HOL said that it was lawful for the director to take into account the threats and his legal duty was to consider public interest and by prosecuting, it could undermine public security and safety.

Courts will interpret in light of the rule of law: R v Secretary of State for the Home Department, ex parte Pierson [1998]

Courts said "Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural"

Joseph Raz

Laws should be general, open, clear, non-retrospective, enforced by independent judges, and not undermined by executive discretion.

Ronald Dworkin/Trevor Allen/Tom Bingham

• Dworkin emphasises justice being delivered by how the law are interpreted

• Allan has a list of common law principles that reflect individual rights

• Bingham said the rule of law requires compliance with human rights and international legal obligations

Critics of ROL: Dylan Lino

Rule of law was a tool of British Imperialism; We can be distracted by using the law to carry out injustices by doing what we think is clear and reasonable

Critics of ROL: Roberto Unger

• Traditional rule of law is a mask for inequalities of power

• It lends legitimacy and an appearance of neutrality

• The powerful make the substance of the laws in their favour

Miller 2

• Whether it is lawful for parliament to be progued from mid sep-mid oct in 2019

• Whilst Parliament is prorogued, parliament can't meet, debate or pass legislation

• Queen Elizabeth was removed from blame and political controversy as she wasn't to blame for the Prime Minister advising her to prorogue

• Controversial as the prerogative has been used to stop parliament working in the context of the finality of Brexit

• Practical constraints on proroguing forever as budget would run out and armed forces bill needs to be passed - leave it to politics to decide how long you can prorogue for.

• Supreme Court held that it was necessary to determine the scope of the Parliament's power - it's  a LEGAL question

• Prime Minister's words to the Queen were void and unlawful and the Courts do have power over judicial issues

constitutional principles

• Parliamentary sovereignty

• Parliamentary accountability

Supreme Court

• Vindicates rule of law

• Proper function of Courts under separation of powers

• Court adjudicates and decides legal question

• Protects Parliament's sovereignty and accountability functions

• Critics say that the Supreme Court shouldn't have been involved and it should've stayed in the political sphere

• Supreme Court undermined the Government's role and they breached their role - critic's viewpoint