Peter Leyland Sources of the Constitution

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Peter LeylandSources of the Constitution
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Introduction

• Sources of the UK constitution are the main focus
  of todays lecture.
• We will see that there are a wide range of
  sources.
• Contrast made with codified US constitution
• There has been recent debate over what might be
  termed constitutional statutes.
• Review of other constitutional sources.
• Defining conventions and understanding their
  constitutional role.

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Why does the UK have an uncodified constitution?

• The British Constitution is not contained in any
  one document nor is there such a thing as higher
  order law, entrenchment.
• The Constitution evolved over time and this
  evolution was first about qualifying the absolute
  power of the King.
• Magna Carta 1215 imposed limitations on Royal
  power.
• Bill of Rights 1689 laid out basic rights but
  mainly recognised the shift of power from the
  King to Parliament. No taxation, army etc.
  without Parliament.
• Great Reform Act 1832 important step in
  redistribution of seats and the grant of the
  right to vote.
• Parliament Acts 1911 and 1949 imposed limitations
  on the powers of the House of Lords.

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Contrast with USA

• Article I All the legislative Powers herein
  granted shall be vested in a Congress of the
  United States, which shall consist of a Senate
  and House of Representatives.
• Article II The executive Power shall be vested
  in a President of the USA. He shall hold office
  during the term of four years .
• Article III The judicial power of the United
  States shall be vested in one Supreme Court.
• Article IV - Full faith and credit shall be
  given in each state to the public acts, records
  and judicial proceedings of every other state.
  The United States shall guarantee to every state
  a republican form government. (Federal system
  established.).
• Article V - Defines method of amendment.

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Sources of the Constitution

• If we wanted to describe the UK constitution it
  would consist of a range of different sources.
• Statute law some are of central significance,
  see below
• Common law e.g. Entick v Carrington 1765
• European Union law since 1973 Multi-Layered
• European Convention on Human Rights since HRA
  1998 in force since October 2000.
• Legal treatises e.g. works of Dicey/Bagehot etc.
• Law and custom of Parliament, which regulates
  itself but is outside the jurisdiction of the
  courts
• Royal Prerogative powers of the monarch, now
  normally exercised by ministers
• Constitutional conventions of special importance
  to flesh in the missing bits.

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What are constitutional statutes?

• Bill of Rights 1689 - limited powers of monarchy
• Act of Settlement 1700 - protestant succession
• Act of Union with Scotland 1707 combined
  English and Scottish Parliaments.
• Reform Acts of 1832/1918 right to vote
• Parliament Act 1911 (restricted powers of House
  of Lords)
• Statute of Westminster 1931 (from Empire to
  Commonwealth)
• European Communities Act 1972 incorporated Treaty
  of Rome i.e. EEC membership. EU law part of
  domestic law for the first time.
• Devolution legislation e.g. Scotland Act 1998
• Human Rights Act 1998 incorporated ECHR

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• Thoburn v Sunderland City Council 2003
• Laws LJ 'In the present state of its maturity
  the common law has come to recognise that there
  exist rights which should properly be classified
  as constitutional or fundamental ... And from
  this a further insight follows. We should
  recognise a hierarchy of Acts of Parliament as
  it were "ordinary" statutes and "constitutional"
  statutes'.

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Recent constitutional statutes

• Constitutional Reform Act 2005 consolidated
  separation of powers, created a Supreme Court for
  the UK and transformed the system of judicial
  appointments.
• Constitutional Reform and Governance Act 2010 put
  some prerogative powers e.g. the ratification of
  treaties and the management of the civil service
  on a statutory footing.
• Fixed Term Parliaments Act 2011 qualifies power
  of PM to call elections by setting elections at 5
  years unless government falls following a vote of
  confidence.

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Common law

• Case law / judicial precedent - case law of
  decisions which expand the common law and
  interpret statutes. For example, individual
  rights in relation to police powers, Entick v
  Carrington (1765). This case was exceptionally
  important because the courts were prepared to
  stand up against the highest authority. An
  attempt by the government to seize papers and
  arrest without a warrant.
• Lord Camden The great end, for which men entered
  into society, was to secure their property. That
  right is preserved sacred and incommunicable in
  all instances, where it has not been taken away
  or abridged by some public law for the good of
  the whole.
• But decisions of the court may be amended /
  overridden by a later statute, e.g. Burmah Oil v
  Lord Advocate 1965 and the subsequent War
  Damage Act 1965. Statute law will prevail.

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European Union Law

• From 1973 EC law (now EU law) became a source of
  the constitution, applicable in areas defined by
  the Treaty(ies) - sources include the Treaty(ies)
  and Regulations, Directives, and Decisions - all
  are binding.
• Also note rulings and decisions of the ECJ -
  where their is conflict with national law EC law
  prevails - the courts must interpret EC law in
  line with Community objectives (the primacy
  doctrine) - it is ...part of our law. It is
  equal to any statute... Per Lord Denning in
  Bulmer v Bollinger 1974

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Constitutional conventions

• Conventions are more important in the UK
  constitution and often determine the conduct of
  the political actors e.g. Crown, PM, ministers,
  civil servants, judges.
• Conventions according to Dicey are
• customary rules which determine how the
  discretionary powers of the state were exercised
• the conventions of the constitution,
  consists of maxims or practices which, though
  they regulate the ordinary conduct of the Crown,
  of ministers, and of other persons under the
  constitution, are not in strictness laws at all,
  in particular, conventions unlike laws are not
  enforceable in the courts. Main role for Dicey is
  to determine the way the prerogative powers of
  the Crown are exercised in practice.

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Further definitions of conventions

• Sir K Wheare - "By convention is meant a binding
  rule, a rule of behaviour accepted as obligatory
  by those concerned in the working of the
  constitution" (Modern Constitutions, p 179). It
  amounts to a rule of moral obligation of most use
  when least needed permeated by values such as
  the rule of law, separation of powers, democracy,
  accountable government, etc.
• Jennings - Law and the Constitution - "provide
  the flesh which clothes the dry bones of the law
  they make the legal constitution work they keep
  in touch with the growth of ideas" i.e.
  (Brazier) (1) enable rigid legal framework to be
  kept up to date re changing needs of government
  (2) oil formal machinery of government - make
  government work, in this sense they have a
  practical .

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Why conventions emerge

• Development of unwritten rules often one brought
  about by evolution / adaptation - most created
  after 1688.
• E.g., last time PM came from Lords in 1902. But
  after the right to vote had been extended to most
  of the population, legitimacy crucial.
• The Royal assent last refused in 1708 (Queen Anne
  refusal of Scottish militia) - creation Cabinet
  / PM. The problem here is to know when a practice
  has hardened into a rule.

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How to determine whether there is a convention

• Jennings - 3 tests for recognising valid
  convention (used in Re Canada below)
• (1) is there a precedent? (vague - political
  rules not like legal precedents) How often and
  how consistently has the practice been observed
  before? E.g., PM from majority party
• (2) Do those operating the constitution accept
  conventions as binding. Do they feel under an
  obligation to act - Ministerial responsibility?
  In other words conventions depend on consent.
• (3) is there a good political reason for the
  convention? Deference of House of Lords to
  Commons (Jennings,pp 136-9).
• Also Jennings pointed out that the only real way
  of knowing if a convention applied is by the
  conduct of the constitutional actors.

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Conventions and the courts

• A-G v Jonathan Cape 1976 QB 752 - Lord Widgery
  LCJ a convention can give rise to an action in
  equity re the principle of confidentiality. This
  was one of the great cases on interpretation of
  conventions and legal rules. The Government moved
  to prevent publication of the Crossman Diaries
  by obtaining an injunction This was on grounds
  of tort of breach of the equitable doctrine of
  confidentiality re Cabinet discussions
  (collective responsibility) - confidentiality
  recognised, but publication allowed because
  material in Diaries 10 years old. Therefore there
  was no harm to public.

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Why are conventions so important?

• Royal assent to legislation is never denied. It
  recognises the Act of Settlement limiting the
  powers of the monarchy.
• If government loses its majority in the House of
  Commons it will resign and call an election.
  Because it can no longer legislate.
• PM and Chancellor of the Exchequer must be
  members of House of Commons i.e. answerable to
  the elected house
• Other ministers must be members of House of
  Commons/House of Lords - leading ministers
• Cabinet speak with a single voice i.e. collective
  responsibility
• After an election leader of largest party will be
  invited by the Queen to form a government and
  become PM. Acknowledgment of the democratic
  process. But this assumes a majority in House of
  Commons.

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Conventions and ministers

• Collective cabinet responsibility originated from
  the need to give unified advice to the monarch.
  It requires that all cabinet members stick with
  any decision one agreed by the whole cabinet or
  otherwise resign. Heseltine resigned after the
  Westland Affair in 1985. Useful tool for the PM
  as it encourages unity.
• Individual ministerial responsibility concerns
  accountability of government departments and
  proposes that it is the minister who directs the
  department. It is she and not civil servants who
  is ultimately responsible when things go wrong.
  But does that mean that ministers are obligated
  to resign.

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Conventions and the judiciary

• Law Lords by convention did not enter into
  controversial political debate on general matters
  or vote on routine legislation. Now (i.e. from
  2009) Supreme Court judges are given peerages but
  expressly excluded by statute from participating
  as peers in the House of Lords in its legislative
  capacity while continuing to work in their
  judicial capacity.
• This convention might be viewed in light of the
  wider judicial role. What Lord Bingham termed
  institutional competence meaning that the
  judiciary should not trespass into the territory
  occupied by the executive in making decisions
  over such matters as resource allocation.

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Failure to follow conventions

• For Dicey because failure to obey will lead to
  legal difficulties - e.g. Parliament has to
  assemble each year because financial resolutions
  are essential for the budget to pass. Yet if
  peers took part in judicial function of Lords, no
  legal sanction.
• Rather, for Jennings political difficulties if
  conventions not enforced it is not legal but a
  political crisis which will occur.
• For example, the Parliament Act 1911 followed the
  1909 budget clash with the House of Lords. The
  Lords breached the convention re financial
  matters prompting the crisis. The effect of the
  Parliament Act is to give what was the convention
  legal force.

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Conclusion

1. UK constitution comprises many different sources,
   most are written but not contained in a single
   document.
2. Statute law is particularly important and some
   recent statutes such as the devolution
   legislation and the HRA have the effect of
   sketching out important aspects of the
   constitution.
3. Many crucial areas determined by conventions,
   some of which are quite vague.
4. Little prospect of a codified constitution
   because of the difficulty of reaching consensus
   on what to put in it.
5. Diceys twin doctrines of parliamentary supremacy
   and the rule of law assume particular
   significance as part of the uncodified
   constitution. See weeks 3, 4, 5.