Flashcards in (1) The UK Constitution & It's Sources Deck (37)
How has the development of the UK Constitution differed from other countries/states?
Rather than following a particular historic event or catastrophe UK Constitution has developed ‘organically’ over time. Constitutional developments in the UK have been the product of careful thought and design – e.g. entry into the European Community.
How did Ivor Jennings neatly encapsulate this difference in the development of the UK constitution?
As Ivor Jennings put it ‘[t]he British constitution has not been made but has grown’ – often through the political and legal responses to particular events.
[See the textbook for a list of the key landmarks in the shaping of the UK Constitution]
How does the uncodified nature of the UK Constitution distinguish it from other around the world?
The UK Constitution is famously known to be unwritten, or more accurately, uncodified, it is an amalgamation of the laws, practices, customs and institutions that, taken as a whole, comprise our system of government.
Where may similarities be found between the UK Constitution and those from other countries/states?
While the UK Constitution may differ from written constitutions elsewhere – similarities can be found in regards to it’s object and purpose.
What are the most notable characteristics of the UK Constitution?
1. Non-codified – amalgamation of sources
2. Three main branches – Parliament, Government and The Courts – some limited power has been devolved to institutions in Scotland, Wales and Northern Ireland
3. Dominant characteristic is the Sovereignty of Parliament
4. It is not entrenched and can be amended through the ordinary legislative procedure
5. There are mechanisms in place to hold government to account to Parliament (Parliamentary Questions) and to the Courts (Judicial Review)
How do the presence of certain characteristics of the UK Constitution undermine Ridley's argument?
They provide the impression that, in spite of Ridley’s view, a number of the core features of a constitutional order can be seen in the UK Constitution.
What are the various sources of the UK Constitution?
In the UK constitutionally, significant rules and principles can be found in the following;
2. Common Law
3. The Royal Prerogative
4. Law and Customs of Parliament
6. European Union Law
7. European Convention on Human Rights
What is an important note when considering the sources of constitutional law in the UK?
It is important, however, that one considers which rules within these sources have 'constitutional significance', not every statute passed or every part of European Union Law holds constitutional significance in the UK.
What are statutes?
Statutes (or Acts of Parliament) are considered an important source of the UK Constitution. Statutes are pieces of primary legislation passed by parliament, they are considered to be the highest form of law in the UK due to the fundamental doctrine of parliamentary sovereignty.
What are the implications of statutes in the UK legal system?
The statutes passed by parliament will address a range of topics and issues and not every one will hold equal significance in a constitutional sense, indeed P Leyland said that some statutes will hold 'special constitutional importance'
What are some examples of particularly important statutes in a constitutional sense?
Some examples of particularly important statutes in a constitutional sense include; The Bill of Rights (1689) and The European Communities Act (1972).
What is it that gives some statutes the 'special constitutional importance' referenced by Leyland?
It is argued by some that the distinction lies in the effects/impact of a statute in relation to the purpose of a constitution.
What did LJ Laws say on the prospect of 'constitutional' statutes in Thoburn v Sunderland City Council?
He said - 'We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights...'
How does the Common Law act as a source of the UK Constitution?
It is through the Common Law that the law develops, on a case-by-case basis and through the system of precedent. It is argued that some of the most crucial constitutional principles have been established through judicial decisions.
What examples of cases that give rise to constitutional principles are there?
The principle that constitutional conventions are not enforceable in courts for instance came from the case of Madzimbamuto v Lardner Burke. Similarly, the case of Entick v Carrington saw the principle that executive power can only be exercised if authorised by a pre-existing legal authority established.
How else may judicial decisions act as a source of the UK Constitution?
In judicial decisions courts may also apply 'constitutional presumptions', such as the idea that parliament cannot restrict the exercise of what the court considers a 'fundamental right' unless they use express words making it clear that this was their intention.
How did Lord Hoffman acknowledge such constitutional presumption on the part of the courts?
Lord Hoffman said on the issue;
'Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.'
Where does further support for the role of the courts in exercising constitutional presumptions come from?
Lord Nicholls in the case of R (on the application of Spath Holmes Ltd) v Secretary of State for the Environment, Transport and the Regions - he said that when constitutional values or laws are at stake the courts must seek to determine the intention of Parliament – this ties in with Lord Hoffman’s reasoning.
Where does the royal prerogative come from?
Considered to be an important source of central government's legal power, the royal prerogative does not however derive from statutes but rather from customary behaviours in times gone by in which the monarch would exercise more direct rule.
Does the royal prerogative still have implication in the modern day constitution of the UK?
While the system has since moved on the Prerogative still governs many important areas of the constitution including the appointment of the Prime Minister and the use of armed forces.
What did Munro say about the importance or influence of the royal prerogative?
‘These special legal attributes are a residue, a remnant of what was possessed by medieval kings and queens. What remains is left to the executive by the grace of Parliament, for Parliament can abrogate or diminish the prerogative, like any other part of the common law. The prerogatives that remain are relics. But they are not unimportant relics.’
What are the potential problems/complications with the role of the royal prerogative in the UK Constitution?
1. Over time the influence of the prerogative will be displaced by primary legislation brought in to manage the same topic/area. A primary example of this was the introduction of the Fixed-Term Parliaments Act 2011 which replaced the prerogative in governing the dissolution of Parliament.
2. Once a prerogative has been extinguished or overruled it cannot be reinstated nor can new prerogatives be created.
3. Where there are clashes between what the prerogative indicates and a statute a prerogative may not be used to frustrate the purpose of a statute, or to remove rights granted under it.
Where are the Laws and Customs of Parliament found?
The Laws and Customs of Parliament are provided in a resolution known as the Standing Orders of the House.
What is the constitutional significance of the laws and customs of parliament?
Many important procedures such as the process for passing legislation and the regulation of debates are covered in this Resolution.
Which three key sets of rules (of constitutional significance) are contained with the laws and customs of parliament?
1. Ancient Usage Rules
2. Rules governing the election of the Speaker of the House of Commons
3. Rules governing the rulings of said speaker on points of order
What are the ancient usage rules?
These rules can be traced back to the seventeenth century and essentially represent the common law of parliament. It is the ancient usage rules that require a bill to be read three times in each house and govern the work of select committees.
Why are these rules, set out in the laws and customs of parliament, of any constitutional significance?
These rules and procedures are significant because they are central in the law-making process and set out how the business of each House should best be carried out – thus offering a means by which Parliament can hold government to account for their actions.
What example is there of the constitutional significance of standing order introduced via the laws and customs of parliament?
An example of the Constitutional significance of Standing Orders is the recent introduction of the Standing Order of English Votes for English Laws. This change altered the legislative process giving greater power to MPs representing English and Welsh constituencies (in regards to Bills affecting England), this illustrates well the constitutional significance of the Laws and Customs of Parliament.
What is a convention?
A Convention is a 'non-legal, but nonetheless binding rule of constitutional behaviour' or alternatively 'non-legal, generally agreed rules about how government should be conducted and, in particular, governing the relations between different organs of government.' In a nutshell they are political understandings, regulating the behaviour of government and organs of the state, which are not enforceable in court.'