Public Law: Constitution

  • Created by: Hbrandxx
  • Created on: 07-05-19 14:43

Features of UK Constitution

  • Uncodified: increasingly more written e.g. constitutional arrangements in statutes.
  • Flexible 
  • Parliamentary
  • Weak separation of Powers= system of Checks and Balances
  • Monarchical
  • Devolved: BUT not federal
  • Religious (Church of England, Church of Scotland + quasi-established Church in Wales)

Consitutional law is concened with the structure of the primary organs of Government; main sources of British Constitution are: Acts of Parliament, judicial decisions and Constitutional conventions.

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Sources of the Constitution Legislation

Primary Legislation

  • Acts of Parliament: process by which both houses take part and receive royal assent
  • Developed by sources like statutory instruments or bye-laws by local authorities

Secondary Legislation

  • Acts of devolved Administrations (delegated legislation)
  • Statutory instruments 
  • Byelaws

Common law and Conventions 

Common Law

  • Case law as it evolves through judicial decisions; judges interpret the law
  • Judges are bound by the rules of precedent + statutory interpretation. Also by their role within the constitutional framework.
  • Judicial precedent: judges interpret constitutional legislation, make common law, acknowledge common law constitutional principles- important source of public law.

Constitutional Conventions and Political Practice 

  • Genuinely unwritten sources
  • Evolve over time- they can disappear as well as appear.
  • They're respected as they reflect a widely shared sense of constitutional morality.
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International Law and Royal Prerogative

  • UK is a dualist Constitution: because there's Parliamentary supremacy 
  • Meaning that international law does NOT automatically become part of national law.
  • The signing of an international treaty doesn't automatically give citizens any legal right to enforce its terms, but Parliament may choose to provide one.
  • E.g. the Human Rights Act 1998 brings the European Convention on Human Rights into the domestic system.
  • In contract, the United Nations Convention on the Rights of the Child is merely persuasive, even though the UK is a signatory.
  • International law has a moral/persuasive force.

Royal prerogative 

  • Powers in the hands of the monarch, don't need Parliamentary authorisation.
  • Historical anachronism- reflects fact that Gov used to be carried by directio of Monarch exercising the prerogative powers.
  • Can be abolished by Parliament and are limited by Constitutional conventions/can overule 
  • Theoretical power but practical power carried out by PM/her ministers.
  • New convention appears to have been created; Gov asks parliament before taking military action.
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Constitutional foundations: Parliamentary Sovereig

  • Dicey-Classic position
  • 1.Parliament can make or unmake any law whatsoever
  • 2.No person/body has the right to override/set aside an Act of Parliament 
  • 3.A parliament cannot bind a future Parliament

Main challenges to Parliamentary supremacy:

  • EU membership: only partial limitation and by virtue of interpreting 1972 Act; judiciary will respect a piece of legislation which chooses to repeal the 1972 act (EU Withdrawal act). Courts are clear that it will end with the repeat of this legislation. UK is free to leave.
  • Devolution- overriding power of Westminster guaranteed (can legislate for Scotland against their wieshes and can abolish Scottish Parliament and reclaim powers devolved).
  • Human Rights Act 1998: If a statute is in conflict with ECHR rights judge must issue a declaration of incompatibility. BUT this is NOT a form of 'striking down' the problematic act. The legislation remains in force. PS is preserved.
  • The UK Parliament can choose to ignore the Strasburg Court as well as the domestic courts, and has done so e.g. prisoner voting rights.
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Constitutional foundations: The Rule of Law

Essence of theory: supremacy of law over person. Every person is subject. Most elusive principle.

  • Principle of legality: law must be properly entrenched. Must be enacted in whatever way the legal system prescribes e.g. rule that it's an Act of Parliament if approved by both Houses and Queen.
  • Formal understanding: law must be clear, open and non-retroactive in order to be valid. However, it's morally neutral. This understanding is supported by Raz: no retroactive effect.
  • Substantive understanding- Law must satisfy the critera for formative AND be ethically sound.
  • Problems- Formal- morally neutral law chilling to most people if taken to ectremes. Also if no objective morality WHY impose the critera.
  • Substantive: Society/ethics change dramatically.
  • Judges happily adopt a 'pick n mix' approach and do need to choose formaive or substantive. That is a problem for legal philosophers.
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Checks and balances: separation of powers

  • Some states have a strict Separation of Powers- the 3 branches of Government (executive, legislature and judiciary) keep apart
  • The UK doesn't adopt this sytem. UK has a weak Separation of Powers.
  • Some mixing of persons and functions isn't problematic, provided that no one person/body holds too much power at any one time.
  • The system of checks and balances means that if one constitutional actor pulls to far in one direction, another can push back. e.g. if Ministers in the Executive try to act beyond the powers which Parliament has given them, they may be subject to judicial review by the courts. 

The three meanings of the principle of separation of powers

1. The same persons shouldn't form part of more than one of the 3 organs

2. One organ shouldn't control or interfere with the work of another

3. One organ shouldn't exercise the functions of another 

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Institutional Framework: Parliament

  • The 3 branches of State: Parliament, Judiciary and Executive 

Parliament 

  • Representative democracy: implemented by representative democracy
  • Political parties play a key role
  • Voting system- First past the post, "winner takes all": constituency boundaries are significant 
  • Bicameral; House of Commons and House of Lords
  • Salisbury Convention: House of Lords should NOT reject a Government Bill that implements a manifesto pledge
  • Parliament Acts 1911 and 1949- ultimately the House of Lords can delay, but not preent legislation if House of Commons determined (exception- Bills to extend maximum duration of Parliament beyond 5 years)

House of Commons: 650 members: party whips, front/backbenchers, leader (Minister of the Crown)

House of Lords: unelected (hereditary peers, life peers, judicial members, Lords spiritual), weaker than Hoc due to SALISBURY CONVENTION + legal restriction on Lord's powers via Parliament Acts 1911-49.

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Institutional Framework: Judiciary

Role

  • Application and interpretation of legislation
  • Resolution of disputes (private party v private party OR private party vs the State)
  • Development of case law and acting at times as architects of Constitution 
  • Powers limited by Parliamentary Sovereignty 
  • Judges in the UK are not democratically elected or politically accountable. This also means protected from political pressure. They are appointed by the Judicial Appointments Commission and they are protected by security of tenure.

Reasons for judicial restraint 

  • Courts are unelected, not politically accountable, unable to consult more broadly about possible changes to the law. 
  • Generalists- whilst gov can drawn upon views of specialist administrators.

Constitutional Reform Act 2005 and est. of Supreme Court: Lords of Appeal in Ordinary to be removed from the Upper House of Parliament.

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Institutional Framework: Executive/Government

Role

  • Executing and administering laws enacted by Parliament: initiative-taker, most powerful instutition
  • Central Government: Prime Minister, Ministers, Cabinet, Government, Departments, Civil sevants.
  • Other public agencies: 1) Non-ministerial departments 2) Non-departmental public bodies; 3) Executive Agencies. All operate at 'arms length' from Ministers and Government Departments.

Accountability: political, legal and adminstrative 

Ministerial Responsibility

  • Cabinet (collective): solidarity amongst Ministers, Gov must resign as a whole if defeated on a vote of confidence in the Hofc/if PM resigns, requires Cabinet and Gov business to be confidential.
  • Ministers (individual responsibility for policy + administration of department+personal conduct= morality of the office).
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Institutional Framework: Executive/Government

The Crown and Royal Prerogatives

  • The residual of discretionary/arbitrary authority which legally remains in the hands of the Crown.
  • Every act which the Executive/Government can lawfully do without authority of an Act of Parliament is done by virtue of the prerogative.

Types of prerogative: 1) Personal and 2) Other prerogatives

Statute

  • Parliament can take away/restrain prerogative powers.
  • Where statute and prerogative coterminous, prerogative goes into abeyance (exception: if benefit/protection given by the prerogative to citizens, this will ONLY go into abeyance by clear Parliamentary intention).

Courts

  • 1) Non-justiciable prerogatives: making of treaties, defence of realm, grants of honours, dissolution of Parliament, appointment of ministers etc.
  • 2) Reviewable prerogatives: refusal of passport, immigration issues etc.
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R (Miller) v Secretary of State for Exiting the Eu

  • Key case on Separation of Powers, the Royal Prerogative and Statutory Interpretation
  • Could the Executive/Government trigger Article 50 and begin the process of withdrawal from the EU without an Act of Parliament?
  • Majority Lord Neuberger: NO: although prerogative powers can be used in relatio to international treaties, they CANNOT be used to alter the legal rights of citizens. To remove rights conferred by EU law required a statute. Furthermore, the legislation enabling the referendum didn't require the Government to implement the result (whereas enabling legislation for other referenda have done this).
  • Dissenting opinion: Lord Reed
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Human Rights Act 1998

Background: why was it necessary?

  • Brought EU convention of human rights into our domestic arena.
  • Judiciary couldn't limit the increasing power at the cost of such freedoms.
  • Relationship with the European Convention on Human Rights: dualist system
  • Section 4 declaration of incompatibility if interferes with HRA.

Most important provisons of HRA: 

Section 2, Section 3, Section 4, Section 19, Section 6 

  • Section 2: Courts/tribunal must 'take into account' any relevant decisions of EU Court of HR, EU Commission of HR or EU commitee of ministers.
  • Section 3: Interpretation of domestic legislation- if a statute cannot be interpreted in accordance w/Convention, court remains under duty to abide by + apply that clear intent.
  • Section 19: Minister introducing new legislation must declare that 'in his view' the bill is compatible with Convention rights.
  • Section 6: Unlawful for a public authority to act in a way which is compatible w/a convention right.
  • Future of Human Rights Act: A UK Bill of Rights?
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Constitutional law exam questions

"Bicameralism does not work in the United Kingdom. The House of Lords is not fit for purpose and unicameralism is long overdue"

Critically discuss this statement.

What is the scope of this question? what areas to cover?

*Mainly a question on the House of Lords BUT the question also refers to the bicameral nature of the UK Parliament. Therefore, this must be addressed.

*Important to refer to the Lower House.

What areas are OUTSIDE the scope of the question?

  • Parliamentary Supremacy as a constitutional foundation. 
  • The wider doctrine of Checks and Balances.
  • The Government, Judiciary, Human Rights Act, Monarchy.
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Constitutional law exam questions

Structure of the question

  • Introduction
  • Bicameralism
  • The House of Lords as part of the wider UK parliament: a brief analysis of the House of Commons.
  • The House of Lords: composition and powers; The Parliament Acts 1911 and 1848/the Salisbury Convention.
  • Unicameralism as the way forward?
  • Conclusion

Introduction 

  • What is the AIM of the question? the introductory paragraph could be:
  • "This discussion will address bicameralism, its meaning and nature in the UK context. It will encompass consideration of the Lower House, but will mainly concentrate on the House of Lords, including an assessment of its composition and powers. In the closing portion it will analyse the possible advantages and disadvantages of unicameralism..."
  • Wouldn't do any harm if you explained (hypothetical second paragraph) where this fits into the wider Constitutional law structure..the legislature, one of the 3 branches of Government, alongside the Government and the Judiciary.
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Constitutional law exam questions

Bicameralism: what does it mean?

  • Bicameralism meaning 
  • What does it entail?
  • Is our bicameral model unique? not really..
  • Why is our bicamerlism idiosyncratic? due to the elected/appointed nature of the House of Lords...
  • Smaller countries tend to be unicameral, larger populations tend to have bicameral systems. 

The Lower House (use alternative terms to avoid a repetitive style)

  • The composition of the House of Commons: 650 members, elected according to the FPTP voting system. 
  • It is fully elected, and therefore, it must be the strongest chamber in the bicameral model.
  • This is NOT a thorough analysis of the House of Commons, the speaker, frontbenchers and backbenchers, etc..it is important to rule out what's not relevant. 

The Upper House

  • Nature of the House of Lords: appointed House
  • Composition: hereditary peers, life peers (political and cross benchers), Lords Spiritual, Law Lords (very few left)
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Constitutional law exam questions

The Upper House (II)

Powers of the House of Lords:

  • Legislative chamber
  • Revision 
  • Amendment of legislation
  • Ping pong process
  • Parliament Acts 1911/1949 and the Salibsury Convention as the instruments which guarantee the primacy of the Commons over the Lords.

Critical analysis 

  • Strengths (e.g. less political, the presence of cross-benchers, etc)
  • Weaknesses (anachronistic, outdated, unappointed, undemocratic, too political as most life peers are political rather than cross-benchers)
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Constitutional law exam questions

Unicameralism

Should unicameralism be the way forward?

  • Advantages (e.g. fully elected Parliament, a faster procedure, fewer readings etc)
  • Disadvantages (e.g. less scrutiny, weakening of separation of powers, overwhelming power of the Government, etc)

Conclusion 

  • A brief paragraph, in which you state the findings of you answer. This will depend on your personal view. E.g. "after having discussed the bicameral nature of the UK Parliament, and the position of the House of Lords in depth, some shortcomings may be identified within the present system, nevertheless on balance the advantages outweigh these and make it worth retaining" OR 
  • "Bicameralism should be maintained in the UK, due to the significance of the doctrine of Checks and Balances, but the Upper House should be reformed to be fully elected, for the reasons which have been highlighted" OR
  • "The House of Lords no longer serves a useful purpose, and a second chamber makes Parliamentary process cumbersome...unicamerlism would be a more efficient framework for the UK to adopt"
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Constitutional law exam questions

Past exam question 2

"The principle of Parliamentary Sovereignty means neither more nor less than this: namely, that Parliament thus defined has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament" (A.V.Dicey, 1885)

Discuss the extent to which this is an accurate statement of British Constitutional Law.

What is the scope of this question? what areas to cover?

  • Focus= Parliamentary Supremacy, one of the 3 constitutional fondations of the United Kingdom.
  • It is important to identify and describe the different understandings of Parliamentary Supremacy and the challenges which the principle has faced in the course of the last few decades.

What areas outside the scope of the question?

  • It's NOT a question about the composition and functions of the Houses of Parliament.
  • It is NOT a question about Checks and Balances and or the Rule of Law.
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Constitutional law exam questions

Structure of the question

  • Introduction
  • Definition of Parliamentary Supremacy by A.V. Dicey 
  • Historical recognition of the principle
  • Key features of Parliamentary Supremacy; a) Brake for the courts; b) Legislation covered; c) Parliament and International Law; d) Implied repeal and constitutional legislation
  • Models/understandings of Parliamentary Supremacy 
  • Challenges to the traditional understanding 

Introduction

  • What is the aim of this question? this intro paragraph could be as follows:
    "In this discussion, I am going to deal with the principle of Parliamentary Supremacy, as defined by Dicey in the XIX century, referring to some of its most important features, including the three understandings of the doctrine, and the challenges which it has faced in the course of the last few decades. Have explored these issues, I shall be in a position to determine whether or not this statement is accurate"
  • can also explain in a hypothetical 2nd paragraph, where this fits into the wider constitutional law structure "it should also be noted that PS is one of the key constitutional foundations in the UK, alongside the Rule of law and Checks and Balances."
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Constitutional law exam questions

Go on to talk about the: Definition of Parliamentary Supremacy by Dicey

  • 1) Parliament has the right to make or unmake any law whatsoever.
  • 2) No person or body is recognised by the Law of England as having a right to override or set aside the legislation of Parliament.
  • 3) A Parliament cannot bind a future Parliament.

Important considerations relating to parliamentary supremacy 

Key features of Parliamentary Supremacy 

  • a) Brake for the courts;
  • b) Legislation covered;
  • c) Parliament and Interntaional Law;
  • d) Implied repeal and consitutional legislation

Models/understandings of Parliamentary supremacy

  • 1. Orthodox understanding of Parliamentary Supremacy: rejection of absloute and contingent entrenchment/significance of the Rule of Recognition
  • 2. New view (manner and form theory). Rejection of absloute entrenchment.
  • 3. Unintended constraints 
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Constitutional law exam questions

Challenges which the principle has faced in the course of recent decades 

  • 1. European Union membership (reflection on the ECA 1972, Factortame, the principle of Supremacy of European Union Law etc...and importantly whether our departure from the EU is going to strengthen the supremacy of Parliament).= CLEAREST CHALLENGE TO DOCTRINE
  • 2. The Human Rights Act 1998 (section 3 and section 4 declaration of incompatibility).
  • 3. The devolution settlement.
  • Carry out an analysis, however briefly, of the challenges which the principle has faced, and to what extent our EU membership has been the clearest one.
  • In light of the study you've previously done about the different understandings of PS, as well as the challenges, now be in a position to determine whether or not the statement is accurate= British constitutional law- PS means Parliament can unmake/make any law. Diceys defintion- is it still viable as well as the key pillars of British constitutional law?

Conclusion

  • A brief paragraph, stating the findings of your analysis. E.g.
  • "After having carried out an analysis of the principle of parliamentary supremacy from a contemporary perspective, we must conclude that this is no longer a valid principle in the current framework" OR 
  • "It is accurate to state that despite all the challenges which the principle of Parliamentary Supremacy has faced in the last few decades, it is still a valid principle in our framework, and if anything the Brexit process is going to strengthen it"
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