Sources of the UK constitution
(1) Statute law: Acts of parliament which determine the relationship between the government and people or different areas of government. an example is the HRA Act of 1998.
(2) Common Law: this is also known as judge-made law or case law. These are customs and legal precedents that have evoled through the actions of judges over a period of time. The Royal perogative is rooted in common law (the ministers now have the control of these).
(3) Conventions: Traditions and customs which have evolved over a period of time and are now an accepted body of rules. The doctrine of collective cabinet responsibility is an example of a convention. The monarch signing off legislation which has passed through both chambers of parliament is also an example.
(4) EU laws and regulations: When Britian joined the European community in 1973, the Treaty of Rome (1957) was incorporated the european convention into British law. EU law has precedent over UK law when conflict occurs- eg factortame case.
(5) Works of Authority: scholarly texts such as Bagehot's 'The English Const.' only have persuasive authority but have been used as constitutional references for hundreds of years.
Features of the UK constitution
*Unitary- power is held at central government at Westminster
*Rule of law- AV Dicey- 3 main pinciples: nobody is above the law, no punishment without trial, the constitution should come as a result of common law, not statute law.
*Parliamentary sovereignty- There is no higher authority than parliament, parliament can legislate on any matter, parliament cannot bind its successor.
*Parliamentary government under a Constitutional monarch: Government is granted the mandate to rule through through free and fair elections. Government works alongisde the monarchy. The monarchy is limited in what it can do compared to the government, it has been looked at in recent eyars as a 'dignified' part of the constitution.
*Fusion of powers
Debate for a codified constitution
- There is nowhere for us to see the constitution cleary. It has evolved over the years and there are now different sources such as the EU. It would provide a clear statement of what is constitutional and what isn't.
- It would encourage poiliticians to remain in the boundaries of what is constitutional.
- Would make it easier for judges to interpret the law and uphold the consitution
- Would have educative value and help explain the political system
- Halisham's 'Elective dictatorship' comment. Poiticians can make the rules to suit them.
- Make the constitution more difficult to ammend.
- Would provide an up to date statement of our rights. European Convention is now over 50 years old.
Debate against a codified constitution
- There is no widespread demand for reform.
- It would be difficult to produce a constitution which everybody approves of.
- Just because a constitution is written doesn't necessarily make it durable, France has had more than a dozen since 1789.
- In general, the consitution works well in proctecting civil liberties. There has been the occasional blemish but in comparison to other countires, the British record is strong.
- The protection of rights in the UK is generally good.
- Because it is easily ammended, it can evolve with circumstance.
General features of a constitution
- Codified of Uncodified (written/unwritten)- Written down and gathered together in a single document.
- Entrenched- Difficult to amend.
- Unitary or Federal- Unitary is where control is held at central government, Federal systems have powers held at a central government and at various regional units.
- Rigid/Flexible- Flexible constitutions can be altered by the law-making process, in rigid constitutions the system of amendment is far more difficult.
Constitutional reform since 1997
Removal of hereditary peers in the HOL: The act removed all but 92 hereditary peers in the HOL. Introduced by the Labour government in October 1998. said to have made the HOL more legitimate, but that can be challenged, Peers are now appointed which leaves space for nepotism.
HRA 1998: Incorporated the European convention of Human Rights into UK law. Citizens who feel that there has been a breach of their Human Rights can now take this up in UK courts, without having to go to the European Court of Human Rights in Strasbourg. Has led to the politicisation of the Judiciary as judges are drawn into the political fray.
CRA 2005: Created the New Supreme Court in 2009. Removed the Judiciary from the executive in a move towards the separation of powers. the Supreme Court was to take over the judicial work of the HOL and create a reduced role for the Lord Chancellor. Appointments to the judiciary to be made by the Judicial Appointments Committee.
Devolution: The devolving of powers away from central government. Resulted in the creation of a Scottish Parliament, and Welsh and Irish Assembly. West Lothian Question arises from this.
The Judiciary and its relationship to other 'powers' of government
What is the Judiciary?
- One of the 3 branches of government. (Other 2 are Executive and Legislature)
- Used as a wide term for anybody that is involved in the administration and application of justice. The branch of government responsible for the adjudication of law and arbitration between parties in any legal dispute.
- Refers to all UK judges from lay magistrates to Law Lords.
Organisation of UK courts
(Created in 2009)
Court of Appeal
(Criminal and Civil Divisions)
(magistrates courts and tribunals)
Judges at all levels ensure that justice is done and the law is properly applied
At the lower levels, the main role of judges is to preside over trials and impose sentences
At High Court Level, judges hear more serious cases and hear cases on appeal
From the Court of Appeal level and above, Judges are concerned with clarifying the meaning of law, not just applying it. They set precedent.
Cases heard at Court of Appeal level are normally a result of confusion in the lower courts. They also deal with cases arriving from HRA 1998.
The Roles of Judges
- Preside over trials for serious offences. (Criminal Law)
- Deliver sentences.
- Peacefully resolve matters between individuals. (Civil Law)
- Uphold the will of the legislature, take responsibility for applying its ruele and securing liberties.
- Have responsibility for Judicial Review.
- Can be asked to chair enquiries.
- Up until 2009 they used to sit in parliament.
Why have roles expanded?
- Expanding role of government, more legislation to adjudicate.
- Protection of civil liberties/Rights- bringing judges into the political fray.
- An un-willingness of politicians to deal with sensitive issues such as aboriton, euthanasia etc.
- Increasing complexity of government machinery, higher chances of conflict between branches of government.
- Increase in groups being willing to use the courts to get their demands met.
Judicial independence is a fundamental characteristic of liberal democracy.
Implies that there should be a strict separation between the judiciary and other branches of government.
It is expected that the judiciary should be able to function freely without any interference from the government of the day.
One of the key differences between authoritarian and liberal states.
Secured in Britain in 3 ways:
- Their security of tenure.
- Their political neutrality.
- The way in which they are selected.
Selection of judges
Traditionally appointed by the government of the day. Most senior ones used to be appointed by the PM after consultation with the Lord Chancellor - Dangers of this such as Nepotism and people not being chosen on judicial merit but partisanship.
New arrangements were made by the Lord Chancellor mid2003 and included in the CRA 2005.
A Judicial Appointments Commission examines the way in which appointments are made. It puts forward nominations and there are clear restrictions on the power of the Lord Chancellor to reject them.
For the Supreme Court, an Admissions Commission puts forward only one name to the Lord Chancellor. He can accept this nomination or reject it, but cant put forward any other suggestions.
Type of people appointed as judges
- Normally middle aged
- Normally male
- Born into the professional middle classes
- Normally Oxbridge educated
- Conservative in their thinking
- Said to be out of touch with the lives of ordinary people
- Overwhelmingly white, male, upper middle aged and upper middle class
Security of tenure
- once installed in office, they usually retain their position subject to good conduct
- should not be liable to removal on the whim of political parties or individuals
- appointed for life
- serve till time of retirement and very hard to remove
- those in superior courts can only be dismissed on grounds of misconduct- can only be done after a vote of both houses of parliament.
By convention, judges are above and beyond politics: apolitical- they determine but do not make law.
This is open to criticism. Judges do not just administer the law in a passive way, there is much potential for them to make law as they interpret it, a process known as judicial activism.
Judicial Activism :The idea that courts should be partners in shaping public policy.
Judges are expected to be impartial and not open to political influence or pressure.
Kilmuir guidelines 1955- principles set out by the Lord Chancellor that restricted the freedom of judges to speak out on matters of public policy. Guidelines have now been relaxed slightly and judges can give interviews.
Relationship isn't as clear cut as an independent judiciary may suggest- some holders of judicial office also have a political role eg the Lord Chancellor, Attorney General and Solicitor General.
Judges may also find themselves caught up in political controversy- being asked to head up enquiries etc
Are judges actually neutral?
Doubt over whether judges really can be politically neutral, everybody will have their own political leanings.
The left has been critical of judges with their mainly conservative backgrounds. They feel as though their party has suffered as a result of decisions made on the bench, mainly in the area of industrial relations.
It can be said that judgement in court can be as a result of the judges backgrounds, attitudes and method of selection, in other words they are biased.
Labour feel that the conservative nature of judges undermines their political neutrality.
Griffiths 1997 argue that the backgrounds and attitudes of judges make them unsympathetic to and biased against minorities and opposed to ideas of social progress.
The process which enable judges to be able to override the decisions of laws of democratically elected governments.
Covers 3 main areas:
- rulings on whether specific laws are constitutional
- resolving civil liberties conflicts between state and citizen
- resolving conflict between different institutions and levels of government
US has strong powers of judicial review- can strike down laws an unconstitutional
Weaker form in Britian, enables the courts to monitor the way in which public officials carry out their duties and allows them to nullify/cancel out decisions which are considered illegal/unconstitutional or unfairly reached.
Home Secretary Micheal Howard made several important decisions which the courts considered unlawful.
Judges can say whether politicians are acting 'ultra vires'- outside of their powers.
Judicial activism describes the case in which judges and the courts take a broad and active view of their role as interpreters of the constitution and reviewers of executive and legislative action.
This refers to the willingness of judges to venture beyond narrow legal decisions so as to influence the evolution of public policy.
in contrast, judicial restraint is the idea that courts should not seek to impose their views on other branches of government. Supporters favour a passive role for the courts which limits them to implementing legislative and executive intentions- judges should simply apply the law.
Judicial intervention in public policy has become more common in recent years. There has been an increase in the power of judges and they are now far more willing to get involved in political areas. Striking down public policies can be seen as them venturing into an area reserved for elected representatives.
The importance of judges has grown which is one of the most significant political developments and drags them into the political fray.
The increasing use of judicial review has led to conflict between judges and ministers.
The incorporation of the HRA 1998 has also led to the politicisation of the judiciary as they are drawn into the political fray. Judges can issue a Declaration of Incompatibility on areas or pieces of legislation which aren't compatible with the HRA 1998, and although they aren't binding, they can irritate ministers who feel the judges are becoming too involved.
Have judges become too powerful?
- Unelected judges can step so boldy into political territory.
- Under British constitution, it is parliament who is the protector of our main liberties, it is a sovereign body and its members alone should make decisions.
- Judges lack accountability and are seen as remote from present-day reality.
- Politicians should be punished in the polling booth, not the court room.
- The division of the 3 branches of government allow for a protection against potential tyranny.
- Judges are aware of how people voted in recent elections and are not completely immune from what goes on in society.
- Their views command respect because of the high esteem they hold.
- Somebody has to react to the law ans review it once it is in place, an independent jury is an appropriate body to do this.
Impact if the European Convention and the HRA 1998
The European Convention sets out a list of freedoms such as freedom of expression, and prohibitation of discrimination. Each entitlement is then followed by a series of qualifications which lists the exceptions to it.
The European Court of Human Rights in Strasbourg has the task of interpreting the conventionin a partilcular case.
Via the HRA of 1998, the European Convention was incorporated into British law.
The HRA 1998 became operative in the UK from 2000. It provides the first written statement of the rights and obligations of British people and incorporated most but not all of the European Convention on Human Rights into British law.
It allows British people to use the convention as a means of securing justice in British Courts.
The HRA does tend to tilt the balance of the constitution towards the judges.
Separation of powers
The 3 branches of government remain separate and independent from each other.
JUDICIARY EXECUTIVE LEGISLATURE
The CRA 2005 which created the Supreme Court (2009) has gone some way to making the judiciary independent.
In Britain we have a fusion of powers. America has a separation of powers.
The separation of powers is the doctrine which says power should be divided between the three branches of government to prevent the undue concentration of power in any one area.
In the UK, the Executive is chosen from and accountable to the legislature- an example of the fusion of powers.