The notion of a constitution and the sources of the UK constitution.

what is a constitution?

The constitution as a text = Countries with codified (vast majority) and uncodified constitutions (including the UK – more on this in a moment…)

what is the significance of a constitution?

• Status as the highest form of law in the country

• The legislature (parliament) ‘does not have unlimited powers but may legislate only within the framework established by the constitution’

• ‘A court, either the supreme court or a specialist constitutional court, is given the task of adjudicating whether the constitution has been breached. If legislation is contrary to the constitution … the court rules that the legislation is invalid’          (See Le Sueur et al, p. 5)

NOTE: None of the above applies in the UK

What is the consitution as a system?

Beyond codified documents…

‘A constitution is the set of important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country’

A. King, Does the United Kingdom Still Have a Constitution? (2001, London: Sweet & Maxwell), p. 3, cited in Le Sueur et al, p. 7

 

So in a constitution we expect to find rule about institutions, or fundamental human rights, or provisions about the amendment of the constitution.

the constitution will most probably also contain general rules such as….

• Particularly technical matters will not usually be addressed in a constitution

• But rather be left to legislature and administration to specify

What is the UK constitution?

The UK does not have a codified constitution (some say the UK’s constitution is ‘unwritten’) Yet, the UK has a constitutional system. Constitutional rules exist. Sources of constitutional rules will be examined shortly…

Why has the UK avoided condification?

• Political stability

• No revolution: ‘Democracy came to Britain by evolution rather than revolution’ (from 4th edition)

• No support from major political parties

See Le Sueur et al, 8-10

What consequences do we suffer from due to lack of codification?

• No higher source than Acts of Parliament. Parliamentary sovereignty

• No formal process of amendment. Extreme flexibility

• Wide range of reforms over the last decades in particular

Le Sueur et al, 11

What are the arguments against the UK becoming codified?

The flexibility of the constitution is desirable

• An Act of Parliament can change the constitution

• There is no rigorous, lengthy process of amendment

• This prevents constitutional deadlock and enables quick adaptation

The claim that in practice, the constitution has worked fairly well…

• When major interventions were needed, these were introduced by an Act of Parliament (eg Labour reform)

• Another example: devolution

• Politics would also be constrained

Risk of a shift of power from Parliament to the courts.

…and if you believe in traditional understanding of parliamentary sovereignty, then you would be against codification.

What are the arguments for the UK being codified?

• It is undesirable for parliament to hold legally unlimited power (parliamentary sovereignty)

• Since the executive generally dominates parliament in the UK, the executive is also granted too much power

• Citizens do not have long-term certainty over their rights and responsibilities. Accessibility and legal certainty

• Civil servants and parliamentarians would also perform their duties with greater clarity

• Human rights, in particular, are not sufficiently protected (see ongoing discussions, for example, about repealing the Human Rights Act in the UK)

• A fair and inclusive process of drafting the constitution would foster identity and increase public confidence in branches of government.

• Less uncertainty about developments such as Brexit and the respective powers of the UK institutions

 

What was established in Miller 2/ Cherry para 39?

‘Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development.’

What are the sources of constitutional rules in the UK?

• act of parliament

• common law

• constitutional conventions

• international treaties

What are acts of parliaments (statues)?

• Made by Parliament (both Houses) and receive Royal Assent (to be discussed further in weeks 6 and 7 in the context of parliamentary sovereignty)

• They are drafted by the government, debated and scrutinised in Parliament

 

Are acts of parliament conclude constitutional significance?

surely we can perhaps agree that there are Acts of particular constitutional significance… Simply put, more important than others

What are some examples of act with consitutional significance? (Act of parliament)

• About Parliament e.g. Parliament Acts 1911 and 1949, House of Lords Act 1999

• About people’s fundamental rights e.g. Human Rights Act 1998

• About the judiciary e.g. Constitutional Reform Act 2005

• About devolution e.g. Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 2006

• About membership of the EU e.g. European Union (Withdrawal) Act 2018

what is common law?

• Made by judges (judge-made law) of the higher courts and the Supreme Court

• This goes back over 1000 years when judges selected the customary law most common in the country and enforced it. Case law was understood as a matter of common culture.

• Precedent-based (flexible) as opposed to a comprehensive code (rigid)

What is the interplay between parliament and courts?

‘The law is made in or under statutes, but there are areas where the law has long been laid down and developed by judges themselves: that is the common law. However, it is  not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament. … This is because Parliamentary sovereignty is a fundamental principle of the UK constitution’

Miller I, paras 42, 43

what is constitutional conventions?

[R]ules of constitutional practice that are regarded as binding in operation but not in law’

The Cabinet Manual, p. 3

Sets of rules established over time by custom or practice

what are some examples of constitutional conventions?

• Collective responsibility of Cabinet

• New government must have confidence of majority of House of Commons

• A minister needs to be a Member of the House of Commons or the House of Lords

• King’s speech to open session of Parliament

• Royal Assent given by King on Ministers’ advice

How do we recognise a constitutional convention?

Prerogative Powers:
Prerogative Powers (or the “royal prerogative”) refers to those powers left over from when the monarch was directly involved in Government.

‘[T]he residual power inherent in the Sovereign, and now exercised mostly on the advice of the Prime Minister and Ministers of the Crown’ (Cabinet Manual, p. 2)

RP powers now include: making treaties, declaring war, deploying the armed forces, granting pardons (e.g. release of prisoners) etc. Still important in foreign affairs

What did Miller 2/Cherry, para 30 say about prerogative power?

‘[T]he  power  to  order  the  prorogation  of Parliament is a prerogative power: that is to say, a power recognised by the common law and exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice.’

What is an historical anachronism?

‘The prerogative is an historical anachronism that reflects the fact that government used to be carried on by or under the direction of the monarch exercising the “royal prerogative”. Most vestiges of the prerogative have by now been swept away by legislation, upon which the vast majority of executive authority depends, but pockets of prerogative power remain. Although formally belonging to the monarch, such powers are generally exercised on her behalf by government Ministers.’

Elliott and Thomas, 2020, p. 62

what is an international treaty?

Monist and dualist systems.

What is a monism?

an international treaty becomes national law without need of incorporation

What is dualism?

an international treaty becomes national law only and to the extent that is translated into such by national legislation

What is the UK treaty?

a dualist state

The Human Rights Act 1998: 2 October 2000 - The UK Human Rights Act 1998 comes into force. This makes the European Convention on Human Rights enforceable in UK courts.

The Human Rights Act 1998: 2 October 2000

The UK Human Rights Act 1998 comes into force. This makes the European Convention on Human Rights enforceable in UK courts.

• Concluded by government with other countries or third parties. Diplomats and other qualified officials (from all parties) usually negotiate and draft the treaties.

• Treaties are a source of law in national legal system only if and to the extent they are expressly incorporated by national legislation

• The UK is a dualist system.

• The courts will normally refuse to give direct effect to an unincorporated treaty.

what is the hierarchy of sources?

• Albeit increasingly qualified and challenged (see lectures in weeks 6 and 7) parliamentary sovereignty is still regarded as the starting point for the UK’s constitution

• Thus, if parliament legally holds unlimited power, it follows that Acts of Parliament are the highest source of constitutional rules in the UK

• Remember an earlier point? An Act of Parliament can change the constitution…

what are further points to consider?

• The discussion on sources is naturally informed by the very flexible nature of the UK -constitution and lack of codification

• And the ongoing debate between the respective boundaries of parliamentary and judicial power

• Within this matrix, the significance (or insignificance) of other sources evolves over time