THE UK CONSTITUTION
1. Introduction to Constitutional Law
What is Constitutional Law = it is about the relationship between the individual and the state
It covers issues ranging from the powers of the state e.g. taxation, conscription to the rights of the citizen e.g. Human rights
2. Nature and Purpose of Constitutions
“A document with special legal status which sets out the framework for government within a country and declares the principles by
which the branches of government must operate.” (Bradley & Ewing, p. 4)
Constitution can set out how the 3 branches can interrelate and what powers they have to check on each other in order to limit the
powers that are granted in the constitution.
Constitutionalism = constitution + “ism” (belief in theory…)
Two things you need for a constitution = A constitution and the constitution maker (elective official – MP; judiciary (legislature
delegates power); military general; religious institutions; dictator; communists; socialists) – ANYONE CAN CREATE A
CONSTITUTION – power to do so = constitution can say anything, whatever you want.
Domestic v Global constitutionalism:
Global explanations:
France – French revolution 1789 based on equality, liberty for all.
Haiti – Slavery, French colony, French slaves who were part of that colony had a revolution as France didn’t let them – kick French
out 1804 – declaration of independence – without France’s consent.
Japan – losers of the second world war – passivism (want you to be peaceful) written by general MacArthur – MacArthur
constitution – debate on they should have their own constitution and not one written by a victim of the second world war
Conventional UK (domestic) explanations:
“Constitutional law is concerned with the role and powers of the institutions within the State and with the relationship between the
citizen and the State”. (H. Barnett, Constitutional and Administrative Law, p. 3)
“[C]constitutional law concerns the relationship between the individual and the state, seen from a particular viewpoint, namely the
notion of law. ... In a stable society, constitutional law expresses what may be a very high degree of consensus about the organs and
procedures by which political decisions are taken. ... Within a stable democracy, constitutional law reflects the value that people
attach to orderly human relations, to individual freedom under the law, and to institutions such as Parliament, political parties, free
elections, and a free press”. (Bradley and Ewing, Constitutional and Administrative Law, p. 3)
Reasons why States have a constitution
Consequences of states not being bound by rules of constitutional law = limitations of governmental powers = human right abuses
(don’t exercise arbitrary power), corruption (£) (rules about how governmental actors to behave, miss-governance, admin confusion
(where you go for legal remedies if the state has violated your right or statuary duties) = bound by constitutional law
The need for an effective constitution = History shows that without checks on executive or legislative power, a constitution is
effectively worthless. E.g. Hitler Germany, Mao Japan = executives that make all decisions without any constitutional oversight or
control – abuses of power.
Different forms of constitutions
Written legal document (normally single) = rigid document
Unwritten = flexible document
Are statutes in the UK constitutional? Metric Martyrs Case (Common name) = about when Britain joined the EU and had to change
its measures to metric. In the Case (Thobe v Sunderland City 2002) – The judge said that UK does have constitutional statutes – did
the judiciary just create a constitution – 5 statues Magna Carta 1250, Bill of rights 1869, Acts of Union between Scotland and
England 1707, Reform acts, Human right acts 1998, Government of Wales act, European Communities act 1972.
Goes against Dicey’s definition (Constitutional theorists) – He has a famous phrase “neither the act of union with Scotland nor the dentists
act of 1878 neither of them has any more claim then the other to be consider as a supreme law” – all laws=equal. No one statute is better
than the other. Goes against the Metric Martyr case.
Recognise that there is a lively debate on how to identify a constitutional statute from an absolute ordinary statute. Or whether there is such
a thing of cognitional vs non-constitutional statute
How do you identify constitutional vs non-constitutional statute?
Rigid and flexible constitution
Rigid = codified in a document and one under which certain laws generally known as constitutional or fundamental laws cannot be
changed in the same manner as ordinary laws. Need a super majority – 75%.
Flexible = one under which every law of every description can legally be changed with the same ease and in the same manner by
one and the same body” (Dicey). Change constitution = need just a majority – seen as equal to every other statute.
The UK – UK is one of the few states in the world not to have a “formal” written constitution. But don’t forget that parts of the
UK’s constitution are written (e.g. Acts of Parliament). So it is more accurate to say that the UK constitution is partially unwritten
(as opposed to entirely unwritten).
Other countries are like the UK – Israel (Basic laws and Declarations); New Zealand (statutes and treaties with the Maori); Saudi
Arabia (The Quran and Royal Degrees) = UNWRITTEN
Main features of “written constitutions”
Written or codified in a single document
The constitution’s authority is derived from the consent or will of the people
The constitution is supreme law = rules over the other laws
Constitution provisions often entrenched = harder to change (rigid – need a super majority)
Amendment – needs a special procedure – 75%, 60%, 2/3rd of legislature
Usually contains a bill of rights
Lists role of key office holders
Power of state and duties on citizens
Balance of power within a state
Checks and balances on power.
,3. Written Constitutions in the World
Canada has a federal codified constitution + USA (state) + Germany + Australia
Federal = Constitution act 1867 - two orders of government – two separate governments where citizens are bound by both
government = Federal and provincial government. Legislative abilities (what they could act) depended on s91 and s92 and how the
2 orders set out their jurisdictions.
Concurrent powers = federal and provincial government can share powers but doesn’t mean they have the same powers.
Federal country so to represent different parts in the unitary order of government– cultural distinctions, linguistic distinctions
UK has a unitary government = one central body of government where they can delegate powers to other institutions/assembly e.g.
Welsh or Northern Ireland assembly. Can take the power back because of central law making authority.
Three branches of Government = Executive, Legislative and Judicial branch
Responsibilities of the branches is set up in the written constitution – one of the act is Constitution act 1867 (not the only act which
sets this out, there are others) sets out powers of the executive powers. Judiciary and executive can check the legislature.
Feature of the constitution = A bill or “Charter of rights” – divided up in categories: freedom, equality rights etc.
S.52 (1) “the constitution of Canada is the supreme law of Canada, and any law that is inconsistence with the provisions of the
constitution, to the extent of the inconsistency, if no force or effect” = Constitution is supreme law in Canada – protects and
jurisdiction powers of the 2 orders of government – any branch violates one of the constitutional provision – challenge the
constitution where the supreme court states there’s been a violation = has no force or effect – may be enacted but not law because it
is inconsistent with the higher law which is the constitution. Supreme court decides whether the law is constitutional – what they
say is the final authority.
Special procedure for amending the constitution – in Canada, there are 5 amending formulas for the constitution where the main one
says that if you want to change the constitution you need 7 of the provinces of the 10 provinces that exists in Canada – 7 need to
agree.
Supreme Court of Canada –
Tsilhqot’in Nation v. British Columbia (2014) Supreme Court held aboriginal title to land existed, if it was not extinguished though
treaties. Some people didn’t sell their land to British settlers –majority of Columbia. Have to prove that you had aboriginal title. No
Terra Nullius Doctrine
R and Morgentaler = Decriminalised of abortion in Canada not legalised 1988 – doctor who provided abortions for women –
repeatedly jailed = 5/6 court cases. Supreme court struck down a law of single criminal code which lists all the crimes –= provision
of abortion is illegal = violated Canadian rights under s7 of the charter to security of the person is threatened. Abortion is
decriminalised.
4. UK Constitution
Structure of the UK – UK = NI and GB; GB = England, Scotland and Wales – multinational state. British Isles = UK 3and the
Republic of Ireland
The United Kingdom comprises England, Wales, Scotland (which together comprise Great Britain) and Northern
Ireland. (Interpretation Act 1978, Schedule 1).
Scottish referendum on Independence = 18th September 2014 = 53.4% of people living in Scotland voted no to an independent
Scotland, voting to remain in the UK.44.7% voted yes to and independent Scotland. Some voted to become independent because of
fact we may be leaving the EU – revisiting after BREXIT -62% voted to remain in the EU
Devolution
– Does the UK have a constitution = yes?
‘That assemblage of laws, institutions, and customs . . . that compose the general system, according to which the community has
agreed to be governed’. (Bolingbroke)
“Not to be left out of the world of constitutional democracies, British writers define constitution in a way
which appears to give us one too, even though there is no document to prove it. The argument is that a
constitution need not be embodied in a single document or, indeed, wholly written. We say instead that a
country’s constitution is a body of rules -- some laws, some conventions -- which regulate its system of
government. Such a definition does not, however, bridge the gap between Britain and the rest of the
world by providing us with a substitute for a documentary constitution: it simply shifts the ground by
using the word in an entirely different way.”
(F. Ridley, “There is no British Constitution: A Dangerous Case of the Emperor’s Clothes” in Allen &
Thompson, p. 3)
Examples of constitutional rules governing the UK:
Method of choosing the sovereign and the PM – set out in constitution who can become the sovereign and the PM
The composition, powers and privileges of the legislature and the relationship between the 2 chambers
Status of government ministers and the position of their civil servants
Control of the armed forced – how it is control and who controls the armed forced
Treaty-making powers
Power to raise and spend public money
Appointment and tenure of judges
Liberties of the individual, including the right to vote in elections – freedom of individuals
Although the UK’s Constitution cannot be found in any single written document, this list shows what is contained in the British
constitution.
5. Sources of the UK Constitution
Sources of the UK constitution – a mixture of legal and non-legal sources.
a) RULES OF LAW:
Primary Legislation: Acts of Parliament and enactments of other bodies upon which Parliament has conferred power to legislate,
particularly delegated legislation (i.e., statutory instruments).
Acts of Parliament are an important source of the British Constitution. Examples of statutes which are
particularly significant from a constitutional point of view include:
Magna Carta, 1215 - Constitutional rights. The main aim of the magna carta – gave people protection
against arbitrary protection. Advocate a fair trial by an impartial judge. Your right to choose the jury –
peers will judge you
, The Petition of Right, 1628 – taxation without the consent of parliament – can’t be taxed unless
Parliament agrees you would need to be taxed.
The Bill of Rights 1689 – document set out a principle that the sovereign can’t dispense of laws without
the king’s/queens authority. (king/queen can’t say they don’t like the law which needs repealing or the
law doesn’t have effect. Prior to the act, the king/queen didn’t like the act then it didn’t have any force
or effect. Now any change to law need the approval of Parliament)
The Act of Settlement 1701 – judges hold office during their good behaviour and they can’t be
dismissing without the approval of both house of parliament. E.g. lenient sentencing – public outcry,
fire judge =can’t do this without approval of both houses). Judge are protected through judicial
independence
The Union with Scotland Act 1707 – in 1707 it merged the English and Scottish parliament.
The Parliament Acts 1911 and 1949 -HOC has more power because these two acts provide that the
two house disagree/conflict then the HOC has power over HOL
The European Communities Act 1972 - prior to this act the UK as outside the EU. To join the EU, you
sign a treaty which doesn’t become domestic law automatically unless it is incorporated into domestic
law into the UK through an act of parliament.
The Human Rights Act 1998 – Signed a treaty (European convention of HR), need a statute to bring
into UK law.
The Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998, all 3
granted devolution – sent legislative powers to the 3 institutions but not all got the same amount of
power i.e. Scotland got more.
Delegated legislation: As well as primary legislation in the form of Acts of Parliament, subordinate or
delegated legislation is also a source of Constitutional law.
Judicial precedent: decisions of the courts interpreting the common law and interpreting statutes.
There are many examples of judicial decisions which have affected the development of the British Constitution.
Such cases include:
Case of Proclamations (1611) 12 Co Rep 74 – judge said that the king couldn’t create new law without
parliament. (Back then the king had divine rule)
Stockdale v Hansard (1839) 9 Ad & E 1 – judge said that the HOC cannot change the law by passing a
new resolution and claiming a new privilege for doing so. (when you make a law, it is introduced as a
hill in parliament, then it goes to the HOL, then royal assent. What if HOC say they don’t like HOL and
create a law saying that the HOL doesn’t have to be involved in making legislation anymore. This is
changing the definition of Parliament.) MPs alone can’t make the law
Attorney-General v Wiltshire United Dairies (1921) 37 TLR 884 – crown and the government can’t use
the royal prerogative (ancient powers) to justify making attacks without the approval of Parliament.
(Can’t increase tax without the approval of Parliament)
Christie v Leachinsky [1947] AC 573 –arrested by a police officer, they need to tell you the reason why
you have been arrested = requirement.
R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603 – in the event of
a conflict between EU law and UK law, EU law takes precedent. The UK law that conflicted with the EU
law, was misapplied
Jackson and others (appellants) v. Her Majesty’s Attorney General (Respondent) [2005] UKHL 56 – HOL
didn’t have the power to declare the hunting act 2004 as unlawful.
The EU: European law is a source following Parliament’s enactment of the European Communities Act 1972.
European law became a source of British Constitutional law following the enactment by Parliament of
the European Communities Act 1972. This Act provides that some European legislation is to be given
the same effect as Acts of Parliament passed by the United Kingdom Parliament.
We shall examine the influence of European law and its consequences for the principle of
Parliamentary Supremacy in lectures later in the term.
[B]y creating a Community of unlimited duration, having its own institutions, its own personality and
its own capacity in law, apart from having international standing and ... real powers resulting from a
limitation of competence or a transfer of powers from the states to the Community, the member
states, albeit within limited spheres, have restricted their sovereign rights and created a body of law
applicable both to their nationals and to themselves. (Case 6/64, Costa v ENEL [1964] CMLR 425, 455
(European Court of Justice).
Under ... the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when
delivering final judgment, to override any rule of national law found to be in conflict with any directly
enforceable rule of Community law. (R v Secretary of State for Transport, ex parte Factortame Ltd (No.
2) [1991] 1 AC 603, 659 (Lord Bridge))
The European Convention on Human Rights (1950) = most of it is now incorporated in the form of the Human Rights Act 1998
The Human Rights Act 1998 entered into force on 2000.
“The [Human Rights Act] marks a major step forward in the achievement of our programme of reform.
It will give people in the United Kingdom opportunities to enforce their rights under the European
Convention [on Human Rights] in British Courts rather than having to incur the cost and delay of
taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the
awareness of human rights in our society”. (Prime Minister Tony Blair, Preface in Government White
Paper, Rights Brought Home: The Human Rights Bill, Cm 3782 (1997))
“The [Human Rights Act] will guarantee to everyone the means to enforce a set of basic civil and
political rights, establishing a floor below which our standards will not be allowed to fall. The Bill will
achieve that by giving further effect in our domestic law to the fundamental rights and freedoms
contained in the European Convention on Human Rights”. (Home Secretary, Jack Straw MP, House of
Commons Hansard, 16 February 1998, Col. 769).
b) ADVISORY SOURCES
, Constitutional law theorists and writers of authority (e.g., Dicey, Jennings, Wade etc.).
DICEY’S THEORY OF CONSTITUTIONAL LAW
i. Parliamentary Sovereignty
[Parliament] 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, The Law of the Constitution, pp. 39-40).
We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that
no Act is irreversible. But legal theory does not always march alongside political reality. ... Take the Acts
which have granted independence to the Dominions and territories overseas. Can anyone imagine that
Parliament could or would reverse those laws and take away their independence? Most clearly not.
Freedom once given cannot be taken away. Legal theory must give way to practical politics. (Blackburn v.
Attorney-General [1971] 1 WLR 1037, 1040 (Lord Denning).
I do not think that countries which were once colonies but have since been granted independence are in
any different position. Plainly once statute has granted independence to a country, the repeal of the
statute will not make the country dependent once more: what is done is done, and is not undone by
revoking the authority to do it. ... But if Parliament then passes an Act applying to such a country, I cannot
see why that Act should not be ... an Act which the English courts will recognise and apply but one which
the other country will in all probability ignore... (Manuel v. Attorney-General [1983] Ch 77 (Megarry VC)).
ii. The Rule of Law
Everyone is equal before the law
Penalties can only be imposed when a law is breached – arbitrary power is prohibited. Have to be certain that someone has breached
the law where you then arrest them if it is a criminal offence.
Remedies for illegal action are to be sought and obtained in the ordinary courts. No special courts for any kind of person – everyone is
sent to the same court and judges who will give the same/similar judgements.
Dicey encapsulated his ideas [on the rule of law] in a single phrase:
‘No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach
of the law established in the ordinary legal manner before the ordinary courts of the land.’ (A.V. Dicey,
The Law of the Constitution, p. 188). In Nazi Germany – there was secret laws so you wouldn’t know
what those law would be as they weren’t published. The rule of law makes sure that citizens are aware
of the law.
This definition can be divided into three separate parts:
1. (1) ‘[No man can lawfully be made to suffer in body or goods’. That indicates that Dicey’s primary
concern is with the protection of individual rights and liberties. ... Acting in an official capacity did not per
se amount to a defence for a civil servant or minister accused, for example, of theft, or being sued for
breach of contract, or for trespass on private property. A government official, just like every other
citizen, had to find some legal justification for behaving in an apparently unlawful way.
2. (2) ‘[E]xcept for a distinct breach of the law...’. This reinforces the conclusion that government has to
operate within a framework of laws which are in some way superior to the mere actions of government
officials: behaviour does not become lawful simply because a government official claims that it is so.
3. (3) [A]ny breach of the law ‘must be established in the ordinary legal manner before the ordinary courts
of the land’. The implication of this is that the courts, rather than the government, have the power to
determine whether or not the law has been broken. (Loveland, p. 46)
Is it time for a constitutional revolution? Does the UK need a “written” or a codified constitution?
Parliament has launched a major consultation into the shape of our democracy through its political and constitutional reform select
committee.
One of the options is to codify the UK constitution i.e. to have a “written” constitution
EXAM: Identify the strongest arguments – always think about the other side
Arguments for a codified Constitution:
It would offer clarity and certainty – lay person is able to read the kind of rights they have.
Attract reverence and public loyalty (Americans are proud of their constitution, where they emotionally connected to the
constitution
Be superior to other laws, so could check governments – stop government from doing things that they would otherwise do.
Offer guidelines for balancing central and local powers – (e.g. devolution) constitution sets out the relationship between the 3
branches of government but also the federal and local power.
Arguments against a codified constitution:
What rights would it protect? Who would draft it? Judges/Parliament/Experts? And how and where?
Who would interpret it? Do we trust the UK’s judges? May interpret you in a way that you don’t want it to be interpreted
Constitutional flexibility would be lost –once you write something down, it feels more permanent where it is tangible. Doesn’t
mean it is, but has a sense of materiality.
The financial cost of reform -Could better use be made of public money
c) CONSTITUTIONAL CONVENTIONS
Influential political rules and ethics, which are not enforced by the courts
“Constitutional conventions form the most significant class of non-legal constitutional rules. A clear
understanding of their nature, scope and manner of application is essential to the study of the United
Kingdom’s constitution. Conventions supplement the legal rules of the constitution and define the
practices of the constitution. Conventions, as Jennings states, ‘provide the flesh which clothes the dry
bones of the law’ and represent the ‘unwritten maxims’ of the constitution”. (Barnett, p. 26).
“A simple, if incomplete, way to characterise conventions’ constitutional function is that they fill in the
gaps within the legal structure of government. However, this notion operates at different levels of
generality. Very narrowly, conventions provide a moral framework within which government ministers or
the Monarch should exercise non- justiciable legal powers. Slightly more broadly, they function as one
means of regulating the relationship between Ministers within central government. In a wider vein,
conventions also regulate the relationship between the different branches of government - - especially
