- Created by: Francesca Marks
- Created on: 25-04-15 18:19
Turpin and Tomkins- Special form of law embodied as a matter of convienence in a single document. Structures legislature, executive and judiciary to outline their relations and relations to the state. Contains citizenship to the state and the territory. Lord Hailsham said may 'institutionalise the theory of limited government'. Establishes system of government. An authority outside and above what it establishes. Entrenched and can only be changed by special procedures. Britians constitution is uncodified. We used to have one under Charles I. In Political Constitution Griffith claims the UK constitution lives on, changing day to day as the constitution is no more and no less than what happens. Everything that happens is constitutional. Ridley said if we do have a constitution it is one sentence stating that Parliament can make and repeal any law whatsoever. He says there is no test if something is constitutional or not.
Barber and Bogdanor- fear if constitution became written itd be mistaken for widespread reform. Opportunity for change might be exploited. Dispute as to whether Parliament or the courts would write it. What would be included? If for public would need to readable length but this would be hard to make it full. Most constitutions are written as a fresh start, would be hard to write as would have to choose between all existing law. Hard to see how conventions would fit. Should amendments be subject to referendum? Maybe too many or Parliament could amend it. Ridley thinks we should have constitution as parliament soverighty is too much and theres no heirarchy of law.
Turpin and Tomkins- According to Dicey Parliament has the right to make or unmake any law whatsoever (positive limb) and no person or body is recognised by the law to override or set aside parliaments legislation. (negative limb). Courts have recognised that statues enacted by Parliament must be enforced over common law and earlier enactments of Parliament itself. Doctrine is the central principle of the system that the rest depends on. Harts rule of recognition states that unlike all other rules the rule of recognition is binding simply because it is accepted by the community, this sustains our constitution with the proposition parliament cannot bind itself. Laws rejected the claim EU law had force in the UK independently of the European Communitites Act. Said 'in the present state of its maturity the common law has come to regonise there exists rights which should be properly classified as constitutional or fundamental. and from this further insight follows. We should recognise a hierarchy of the Acts of Parliament- as it were 'ordinary' statutes and 'constitutional' statutes.' Constituional statutes include European Communities Act, Magna Carta, Bill of Rights 1689, Acts of Union, HRA and Devolution legislation. Constitutional by force of the common law. These cannot be impliedly repealed. Not all agree though. In Factortame the HoL acknowledged its obligation to comply with a principle of EU law as affirmed by the ECJ required it to deny its effect to the terms of an act of Parliament. ECJ insisted that member states had limited their own sovereignty by joining. EU law has effect in UK as Parliament said so. P may repeal the European Communities act so can technically be called sovereign still.
In practise it makes law that are compatible with EU. As a matter of international law UK has been bound by the tems of ECHR since 1950s. Some convention rights are incorporated into UK law. Cant strike down incompatible laws, but can declare incompatibility. 'Under the terms of the European Communites Act 1972 it has always been clear that it was the duty of a UK court, when delivering a final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of community law.' Lord Bridge Factortame 2. Lord Bingham in 'The Rule of Law' 2010 said 'it has been convincingly shown that the principle of ps has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it.'
N Barber 'The Afterlife of Parliamentary Sovereignty' 2011- Dicey argued the electorate can in the long run prevail over a parliament that has passed unpopular laws by throwing out their representive. 'Self correcting' model of representive democracy. By denying Parliament the power to fetter its future selves the rule ensures no area of law is beyond the reach of the electorate. On factortame: Wade argued there had been a revolution that the judges had departed from ps without enjoying the legal authority to make the change. Has been said shouldve gone with the later MSA in 1988 and repealed the earlier 1972 act.
Lord Bridge made it plain the decision was motivated by a desire to uphold the wishes of parliament as it had joined voluntarily and was aware of the constraints membership brought. Parliament strive to avoid legislating in conflict with European law. It can be argued that a constitutional convention, a non legal constitutional rule, had emerged requiring that it not legislate in conflict with community law. Wade thought the origin of the legislative power of parliament was found in common law. He argued that the Parliament Act 1911 created a mechanism through which delegate or subordinate legislation could be produced. Thinks PS ceased to be a feature of the UKs constitution after Factortame. Some have redefined it as a rule that gives supremacy to parliament. AW Bradley argues is sovereign as could repeal Communities Act. The fact it would first have to remove the limitations placed on it by the act shows that it would not resurect the old parliamentary sovereignty rule. Some say there is 'bi polar' soverignty where it is shared between the legislature and the courts. A sucessful statute relies on the legislature crafting the law with care and the courts applying it skillfully. Thinks maybe we should allow soverignty to revert to its older and more fundamental meaning, as the necessary and desirable capacity of a state to autonomously exercise control within its territory.
Wade 'Sovereignty- Revolution or Evolution?' 1996- new term 'dis-applied' had to be invented in Factortame which showed something drastic had happened to PS.
The later act must prevaiil rule was violated- MSA 1988 under European Communites Act 1972. Enacting that European Community law was to prevail over acts of Parliament 'passed or to be passed.' Could be classed as a constitutional revolution. Parliament of 1972 had managed to bind Parliament of 1988, and restricted sovereignty which was supposed to be constitutionally impossible. Mean parliament of the day may cease to be sovereign. Based on the construction view that first Factortame case was argued. Construction view: that the disapplication of the act was achieved merely by way of statutory construction under ordinary principles.Craig- 'A rule of interpretation to the effect that Parliament is presumed not to intend statutes to overrie EEC law. On this view inconsistencies between UK statutes and EEC law would be resolved in favour of the latter' unless 'Parliament clearly and expressly states in a future Act that it is to override Community law.' Laws writes that 'The effect is that S2(4) of the European Communities Act fails to be treated as establishing a rule of construction for later statutes, so that any such statute has to be read as compatible with rights accorded by European law.' Wade regards this as revolutionary as it is exception to the rule that Parliament cannot bind his sucessors. There is no true devolution of sovereignty as 'as parliament delegates the law of europe is not a higher- order law, because the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself.' 'While Britain remains in the community we are in a regime in which Parliament has bound its sucessors successfully and which is nothing if not revolutionary.'
Wade observed that the langugage of the Factortame judgements is inconsistent with the view that courts have merely adopted a principle of statutory construction in seeking to avoid conflict between English and European Law. Argues that the rule of construction view of Factortame is ultimately only 'camoflage for the fundamental change which has evidently occured.' Thinks the courts are acting politically and it is necessary. Parliamentary powers had suffered a seismic change. Provides further example of the Constitution bending before the winds of change as in the last resort it will always suceed in doing.
Allan- 'Parliamentary Sovereignty: Law politics and revolution' 1997- principle of legal certainty strongly favours decisions made consistent with the rulings of the ECJ, might be thought undemocractic. British judges sit to adminsiter British constitution, cannot give unconditional allegiance to the community as a superior source of law, unless they are confident that such a development would be fully compatible with our constitutional committment to democracy. Mitchell argued that PS was permanently curtailed when UK joined Community, the former national sovereignties of member states were pooled. (radical interpretation.) On Factortame- a revolution occurs only when a new source of authority is acknowledged which is not justified by existing order from which the courts have for whatever reason drawn their allegiance. In Factortame HoL merely determined what the existing constitutional order required in novel circumstances. The view that sees exceptions the the rule that the court should
give unconditional obedience to statutes amounts to revolution is simply dogmatic and incoherent. Wade over looks the possibility of an inconsistency between requirements of community law and principles of British constitutional law. Talk of revolution falsely implies the courts role is merely to accept whatever policiticians decide. Wades suggestion that 'the prudential course may be to follow the example of the HoL and turn a blind eye to constitutional theory altogether' must be rejected.
Parliamentary sovereignty: soverignty has been curtailed during continued membership of European community. Sir John Laws said 'the doctrine of Parliamentary sovereignty cannot be vouched by Parliamentary legislation, a higher order law confers it and must of necessity limit it.' An adequate constitutional theory, appropriate to current circumstances would recognise limitations on legislative power in order to ensure an adequate separation of power, though essential to the prevention of tyranny.'
Rule of law
Bingham 'The rule of law' 2007- 'Joseph Raz has commented on the tendency to use the rule of law as a short hand description of the positive aspects of any given political system.' 'Shklar has suggested the expression may have become meaningly thanks to ideological abuse and general overuse.' Extreme diffiiculty in formulating an accurate defintion suitable for inclusion in statute and prefer to leave the task to the courts. Core principle that all persons and authorities within the state, whether public or private, should be bound and entitled to the benefit of laws publicly and publicly administered in the courts. But cant be applied without exception.'
J Raz 'the rule of law and its virtue' 1977- Hayeks idea of the rule of law is 'stripped of all technicalities this means that the government in all its actions is bound by rules fixed and announced beforehand- rules which make it possible to foresee with fair certainty how the authority will use its coersive powers in given circumstances and to plan ones individual affairs on the basis of this knowledge.' Raz sees it as a fallacy that it has overriding importance. Says people use it in a way it wasnt meant. Polictical ideal that a legal system may or may not have.
Turpin and Tompkins- legal rule and polictical idea, comprising values that should be in the legal system and respected by those concerned in the making, development, interpretation and enforcement of the law. Acquired the status of 'overarching principle of constitutional law'- Steyn.
Rule of law
Principle not always observed, most at risk of violation in times of crisis. Requires independent courts to check public authorities. Gov should comply with court decisions. Lindley LJ said 'fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless language is such as plainly to require such a construction.'
Craig ' Formal and substantive conceptions of the rule of law'- 1997- Formal view- address the manner in which the law is made known, the claifty of the ensuring norm and the temporal dimension of the enacted norm (retrospective or not?) Doesnt seek to pass judgement on the actual law itself eg if its a good or bad law. Raz supports the formal view stating it shouldnt be confused with human rights. The rule of law could be met by regimes that have morally objectable laws. Equally a democratic regime may not live up to this. May have to be sacraficed to achieve other ends. Diceys principle is formal- he doesnt consider content. Uses word 'aribitrary' in a formalistic way, considering that England was not subject to arbitrary power.
J Raz 'the rule of law nad its virtues- 1977- Raz said dont confuse with human rights, equality, democracy or justice. 'Rule of law may be yet another mode of protecting personal freedom.' 'Deliberate disregard for the rule of law violates human dignity.' A negative virtue- conformity doesnt cause good except through avoiding evil and the evil avoided is evil which could only be caused by the law itself. 'Conformity to the rule of law doesnt always facilitiate
Rule of law
realisation of the indirect purposes of the law but is essential to the realisation of its direct purposes.' It is a tool that people need to follow and make effective.
Substantive concept: Craig 'Formal and substantive concept of the rule of law' 1997- has same as above but taken futher. The concept is used as a foundation for those rights and then can be distinguished against good laws that comply with rights and bad which do not. The concepts are similar on dignity- people need to be able to plan their lives. Hard to find a middle ground as judicial review isnt self executing and the exclusion of consitutional doctrine is problematic.
Turpin and Tomkins- law should be open, known by sufficient publication. Burton J 'fundamental requirement of rule of law that the law should be made known.' Should be clear and stable.
Do we need to chose between them? Raz says main idea is the 'principled faithful application of law'. Jowell thinks it is a principle of institutional morality and as a constraint on the uninhabited exercise of gov power and argues that it does possess a substantive aspect.
Rule of law
Craig 1997- Dicey said 'when we speak of the rule of law in our country no man is above the law, whatever his rank or condition.' but every man is subject to the law of the realm and amenable to the jurisdiction of ordinary tribunals.
To what extent is rule of law realised in the UK? Turpin and Tomkins- disregard of rule of law when the officially authorised but unlawful physical ill treatment applied to detainees in NI in 1971. Again in NI when 'shoot to kill' policy in police in 1980. In an attempt to secure convictions the police sometimes fabricated evidence eg Birmingham 6. The rule of law is undermined if the state exercises its power in a way to make it impossible or very difficult to challenge legallity of states actions. In 1984 Home Office allowed police to put bugs in homes in certain circumstances. No legal basis for this authorisation and unlawful acts. Guantanamo Bay also when it concerns the helping or knowledge of awful treatment of British detainees. Allegations that British troops involved in torture in Iraq. Cant always be relied upon to respect the law. A state can only uphold rule of law if it provides effective means for prevention and redress of illegal action by those who weild public power. M v Home Office in 1994- Wade said 'had put the rule of law back on the rails.' Laws arent always clear. Law Commission 1994 observed that 'laws which so many people have to use remain unsimple, unmodern, unaccessible and unreformed.'
Separation of powers
Turpin and Tomkins- seen as a means to restrain the abuse of governmental power. Should have power to check each other. Vile says 'the diffusion of authority among different centres of decision making is the antithesis of totalitarianism or absolutism.' Barendt 'Separation of Powers and Constitional Government' 1999- Montesquie said the principle was to be valued as a guarentee against tyranny. John Locke is thought to be founder of the spearation of powers in English thought but he regarded the legislature as supreme. Partial version is significantly different from the fundamental principles of the British contemporary constitution. Thinks the partial separation better captures its underlying values. Argues purpose is to protect the liberty of individual by making state action more difficult, done by checks and balances. (maybe wrong as suggests you cant have liberty and a strong state.) Pure separation says little abount functions of government not easily characterised as legislative, executive or judicial.
N Barber 'Prelude to separation of powers' 2001- lies in the meeting of form and function, the matching of tasks to those best suited to execute them. The core of the doctrine is efficiency. The partial version empahsises the significance of checks and balances within the constitution.' Branches may be separate purely, allowing no overlap of any components, or partially which enforces strict checks and balances.
Separation of Powers
Ways separation of powers arent realised in the UK- Turpin and Tomkins- Office of Lord Chancellor- senior judge, head of judiciary, whilst also being in Government and presiding in the Lords. His office had political nature. No separation of powers as one person was able to be in all places. 'The Lord Chancellor would never sit in any case concerning legislation in teh passage of which he had been involved nor in any case where the interests of the executive were directly engaged.'- Lord Irvine. Now been abolished and his functions redistibuted. Fundamental judiciary is independent so their decisions are reached in accordance with law and not government. Appointment shouldnt be politically motivated. Lord Chancellor provided no safeguards against this. New Judicial Appointments Commission of 15 members.
Up until 2009 Law Lords sat in Parliament. Claimed didnt get involved in cases of party contraversary and were aware they might render themselves illegible to sit on a case if they expressed opinions. 2005 constitutional reform Act removed them from here and in 2009 SC opened. Courts shouldnt interfere in parliament and vice versa. Judges shielded from parliamentary criticism by a rule that charges against judges can only be on a substantive motion upon which a vote must be taken.
Parliament and the executive- Bagehot -' the close union, the nearly complete fusion, of the executive and legislative powers' Domination of HoC by party and gov seems to be
Separation of powers
a formidable obstacale to parliaments performance of its function of scrutinising the executive. Separation of powers arent counter balanced. May fall to courts to to ensure that government is respectful of legal limits in its relations with parliament eg SoS for Home Dep ex p Fire Brigades Union. Some said the Home Office deciding sentencing tariffs edged into the realms of judical power (doesnt do this anymore). Lord Steyn said our constitution has never had a rigid doctrine of separation of powers. The principle of separation of powers presupposes that the authority conferred on the judges to decide disputes and develop legal principles is given on the condition that no policitcal preference will influence their judgements. But it can be seen that judges, by virtue of their background, training and associations are deeply conservative and have attitudes which led them to look with favour upon property owners, employers and the established social order. Courts will decline to enter into matters they deem non judicial eg in Chandel v DPP it was whether it was in the interests of state for the armed forces to be provided with nuclear weapons. They saw this as political so not appropriate for them.
Barendt 'Separation of Powers and Constitutional Government.' 1999- the executive is ill fitted to decide issues of personal liberty. It is much more susceptible than court to media and other pressure which is likely to give individual liberty less weight than public order.
Separation of powers
Barber 'Prelude to the separation of powers' 2001- line between branches of state is increasingly blurred. In European Union Commission plays a part in all activities. Can make law in cooperation with institutions, executive role as ensures directives are put into member states and can investigate abuses by member states.
Barendt 'Separation of Powers and Constitutional Government.' 1999- No effective separation in terms of checks and balances. Gov effectively controls legislature. MP's answerable for their conduct and voting to the gov. Executive controls legislature through device of party. Effective separation of Judicial power. Judges are protected from summary removal under Act of Settlement 1701. Claims the separation of powers is a 'principle too long ignored in UK constitutional law.'
What is Parliament for? A Tompkins 'What is parliament for?' parliament as a scruitneer or regulator of government. Two constitutional functions- make the law as national legislator, and to hold government to constitutional account. Maybe emphasis should be on second part. Scruitinises the legislative, Parliament provides us with the executive and parliament has a representitive function. None of these are taken as seriously as legislative function. For Bagehot the most fundamental constitutional role was to supply the government.
Separation of powers
MP accountability is a parliament function. Alistair Darling said it is ministers responsibility what happens in their department and 'if you let ministers off then you are never going to hold anyone to account really.' Attempts to make accountability work. Committees to scruitinse government departments work. Part of checks and balances. Largely a myth that Parliament is a legislator. All law is made within the executive of the day. Parliament is the organ through which the executive must give its legislative proposals the force of law. Instrumental role- not soverign role. Retains theoretical right not to enact law the measures that government places before it but this is rarely used. Used once in Thatchers 11 years and never in Blair. Role in practise is scrutiny of govs legislative proposals. Select Committees getting bigger roles eg Anti Terrorism, Crime and Security Act 2001 had 5 reports from Select Committees during its passage.
J Raz 'The Rule of Law and Its Virtues' 1977- Hayeks position transforms the rule of law to encompass a form of government by consent and it is this which is alleged to guarentee freedom. If the rule of law encompasses government it will also encompass the principle of separation of powers.
What was the status of Human Rights before 1998? Turpin and Tomkins- convention law didnt have direct effect and not enforceable by English courts. Courts applied the 'prima facie presumption that Parliament does not intend to act in breach of international law, including there specific treaty obligations.'- Salomon v Customs. If provision was unclear they would attempt to interpret consistently with convention. Courts showed increased willingness to take account of European Convention in developing common law. Before HRA cant say someone was acting unlawfully just because they didnt act comptaibly with convention rights. Bound by terms of ECHR since 1950. This means litigants could complain to ECHR if felt violated by UK. After HRA could do in domestic courts.
Feldman- 'the human rights act and constitutional principle.'- been weak, is bound by various international human rights, but few obligations put in legislation. Not many remedies available and had to go to strasbourg. Doctrine of PS had made it possible for acts of parliament to interfere with freedoms witout legal constraint. HRA has advanced legal accountability for violation of fundamental freedoms and human rights.
S3 effects- Turpin and Tomkins- R v A Lord Steyn considered the only limit on S3 use was where the provision in question expressly contradicted a convention right. This was criticised. He went on to say ont available where suggested interpretation is contrary
to express statutory words or is by implication necessarily contradicted by the statute. In Sec of State for Home D v MB a majority of HoL ruled the question for whether legal proceedings in cases where a control order is challenged are fair is one that should be determined on a case by case basis in the light of S3 of HRA.
Feldman 'The Human Rights and Constitutional Principles' 1999- even if parliament expressly repeals or amends Schedule 1, courts will be required by s3 to interpret the amending legislation so far as possible in compatible with convention rights. This applies whether the amendment restricts or removes existing rights and introduces new rights. Interpretive duty of courts isnt based on the presumed intention of parliament. Encouraging courts to be creative in interpretation and application of convention rights may lead to an interpretation which is directly contrary to the intention of the act makers. It doesnt threaten parliament soverignty because parlimaent itself has decreed that judges should behave in accordance with s3.
A Kavanagh 'Unlocking the Human Rights Act' 2005- Many criticised R v A claiming 'most radical use of S3' or 'judical override'. R v A is a leading authority on how judiciary should approach interpretive task. Lord Hopes cautious approach- found it 'difficult' to accept rest of the courts approach. Lord Steyns radical approach- can give a provision an effect not intended by parliament.
In Lambert Hope said under S3's a judges task is to interpret not legislate. In R v A words were read in to give different effect. Lord Steyns radicalism- interpretive obligation under s3 is a strong one. Court applying s3 may depart from or adjust the language of the statute in order to be convention compatible. Not that radical as had been used before HRA.
S4. Feldman 'Human Rights Act and Constitutional Principles' 1999. created remedy of declaration of incompatibility where a superior court holds primary legislation to be incompatible with convention rights. When a court does this it triggers a power for a minister to amend the offending legislation (either by Act of Parliament or statutory instrument). Statutory provisions will often be read down having words of limitation (such as so far as is compatible with convention rights) implied into them to make them compatible. A convention right 'does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.' Lord Irvine expects courts will be able in 99% of cases interpret legislation as convention compatible. Remains to be seen how effective a convention of incompatibility will be in changing the law. Cannot strike down law, can only invite to intervene. Operates as a formal invitation to the minister and parliament to reconsider the legislation. Minister can do nothing, which may trigger an application to the ECHR. Or may be amended. Power to make declarations gives judges new activity but in legal terms doesnt threaten the legislative competence of parliament.
Kavanagh 'Unlocking the Human Rights Act' 2005- some say shouldve used S4 in R v A. Seems unlikely that would have led to comprehensive reform. Wouldve failed to protect A's rights. Lord Steyn said in Ghaidan that S3 is the primary remedial provision of the HRA. The best remedial solution in R v A was to opt for a strained S3. May threaten PS as telling them what to legislate, but also doesnt threaten it as they have the choice not to change. Although choice may not be valid due to fear of ECoHR.
How does HRA affect power between Parliament and judiciary? Turpin and Tomkins- 'fundamental rights cannot be overriden by general or ambigous words. In the absense of express language the courts therefore presume that even the most general of words were intended to be subject to the basic rights of the individual. In this way, the courts of the UK, though acknowledging the soverignty of parliament apply principles of constitutionality little different from those those which exists in countries where the power is expressly limited by a constitutional document.- Simms 2000
Feldman 'Human Rights Act and Constitutional Principles' 1999- theres a risk that jurifying rights might weaken politics by moving debate from political forums to the courts, restricting freedom of action by democratically elected parliaments and accountable government.
Gives judiciary lots of influence. Although dont have to follow court 17/18 declarations of incompatibility lead to law change. Judges can mould what parliament legislates.
What does the enactment of the HRA say about the role of parliament and judiciary in a modern constitution? Feldman 'Human Rights Act and Constitutional Principles' 1999- may move rights protection towards courts and out of politics. HRA achieves symbolic status which will make amendments to it politically more contraversial than amendments to ordinary legislation. Where there is violation of A13, a remedial order would uphold the rule of law principle that there should be effective legal remedy for violation of legal rights. Use of remedial order to amend a new statute in order to give effect to an obligation in international law is a constitutional step which gives rise to a new kind of executive incursion of ps. Best to restrict rule of law to formal, procedural values. Easiest to secure consensus in favour of a relatively limited primarily, procedural notion of the rule of law. Some convention rights ive rise to the rule of law by giving due process to rights eg A5,6,7. Strengthens RoL as prescribes that a public authority should be able to point to legal authority for all aspects of its behaviour and remedy should be available to victim of unlawful actions. Preference for limited and accountable government.
Separation of powers: parliament has invited judges for the first time to tell it it has acted wrongly by legislating incompatibly with a convention right. Declaration of incompatibility
may be declarations that parliament acted unlawfully. (although not unlawful for P to act incompatibilty with a convention right). The wrong which court declares then in a declaration of incompatibility would appear to be a non legal wrong. So doesnt violate PS.
Convention rights in Schedule 1 will be possible to amend or repeal them by express provision, implied repeal wont work. Instead will continue to operate so courts will have to interpret the later legislation to be compatible with the rights. If parliament want to amend sections of the main act it will be possible to do so expressly or impliedly, since these do not have the same high legal status as convention rights in Sch 1. Values are given privilege but not unchallengable place. Making new primary legislation: requires minister in charge to state either that in his or her view the bill is compatible with the convention rights (statement of compatibility) or that he is unable to make a statement of compatibility but nevertheless the government wishes the House to proceed with the Bill. Focuses them on convention rights.