Constitutional Law Master Document
Themes, Sources and Principles
Introduction
Elliott outlines the four pre-eminent functions of a constitution: the allocation of power, the
providing of accountability, the supply of legitimacy, and the conferral of permanency. He
distinguishes the UK constitution from others with reference to its unwritten and flat nature,
largely a product of its wide variety of sources: legislation, the common law, treaties, and
constitutional conventions.
Conventions
Constitutional conventions, he tells us, are tested for by ‘the Jennings test’, which asks:
1) Is there a precedent?
2) Did the actors consider themselves to be bound by said precedent, as if by a rule?
3) Is there a reason for the rule?
These conventions are significant because they help us to sketch out the limits of legal and
political concepts of constitutionalism. That debate – between whether Parliament or the courts
are the ultimate arbiters of what is law – is also one observable through three core principles:
1) Parliamentary sovereignty
2) The rule of law
3) The separation of powers.
Mark Kelman distinguishes between “clearly defined, highly administrable rules” and “equitable
standards producing ad hoc decisions with relatively little precedential value”. He makes this
distinction in the criminal law context to outline, inter alia, that standards have the benefit of
“alleviat[ing] the problems of nonpurposive applications of legal commands to particular cases.”
Conventions are non-precedential standards often involving equity that produce inconsistent
decisions, have little precedential value, and can be closely tailored to particular cases so as to
avoid imprecise application. Not being legal rules, are they like Kelman’s “standards”?
Many public law commentators have termed conventions the ‘political rules’ of carrying out the
exercise of power … might we reconstruct that language as “constitutional standards”?
Separation of Powers and the Rule of Law
Lord Hoffman in R (ProLife) v BBC [2004] 1 AC 185 at [75] said that:
,“In a society based upon the rule of law and the separation of powers, it is necessary to decide
which branch of government has in any particular instance the decision-making power and what
the legal limits of that power are. That is a question of law and must therefore be decided by the
courts.”
The Separation of Powers
Allan tells us that the separation of powers is the notion that the three branches of power should
not infringe upon one another’s functions. From the Magna Carta 1215 onwards, the struggle here
– particularly between the executive and legislature – has framed the historical development of
our constitution. Many of the developments in this respect happened around the Glorious
Revolution of 1688:
● The Petition of Right 1628
● Bill of Rights 1689
● Habeas Corpus Act 1679
● Act of Settlement 1701
Modern day statutory reforms show this continuing tradition: the Senior Courts Act 1981 and the
Constitutional Reform Act 2005. This fragile framework is however threatened by the extension
of executive power beyond its competencies. Examples of how it does this:
● Bills of attainder – statutes declaring an individual guilty of a crime and specifying their
punishment.
● The prerogative of mercy – the issuing of a pardon by the Home Secretary.
● The exercise of quasi-judicial powers by Ministers and tribunals.
● Henry VIII clauses – clauses that empower Ministers to amend or overrule primary
legislation by exercise of a prerogative power.
It is notable that the executive’s ability to exercise all of the above has been curtailed by the
Courts. In particular, the exercise of quasi-judicial powers by members of Government has been
curtailed in cases like Venables, Pierson, Anderson, Evans and A.
A good summary of how this is done, and how the tensions in this area operate, is given by Allan’s
agreement with Lord Steyn in Pierson: “Parliament is the supreme lawmaker, but it must make
law within the scope of the rule of law. Statutes must be interpreted, at least, on the assumption
that they are laws intended for a liberal democratic system based on the traditions of the
common law”.
The role of the courts
Writing on the separation of powers in the Federalist Papers, Hamilton wrote that “in a
government in which they [the powers] are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous to the political rights of the
constitution; because it will be least in a capacity to annoy or injure them.”
,Bickel has suggested that the role of the Courts is the “definition and imposition of values.”
John Hart Ely criticises this position as a baseless realist assertion that judges must, on account
of their humanity, be imposing their own biases on the law and that, since this is the way that it
is, it must somehow be right. Ely responds that this is “a conclusion of desperation; but in this
case an inevitable desperation.”
David Lyons has written that the fact the American constitution was written down – “to fix its
content” – means that “Courts have not been authorised to change the rules. So courts deciding
cases under the Constitution should follow the rules there laid down.” If this is applicable to the
English case, because here too there exist constitutional values and statutes that judges are not
expressly permitted to change, then that they do anyway is a breach of the separation of powers.
If it is not applicable to the English case, because the US Constitution is entrenched, then is
judicial shaping of constitutional values in controversial instances like Miller 2 and Anisminic an
issue that Government or Parliament could resolve by codification? If so, we may wonder if
codification would be a conservative, rather than liberal, change.
Lyons also argues that asserting the constitution as the product of a ‘social contract’ (a la
Rousseau) allows us to ground the process of statutory interpretation in intentionalism, that is, it
allows us to decode nebulous legal language by reference to its drafters. In countries like
England and the US where laws from centuries past are retained, this is both morally and socially
objectionable, and – perhaps more doctrinally – lacking in what Lyons sees as the core aspect of
interpreting law: the finding of justification.
This is fascinating because it allows us to reconcile the stringent and loophole-laden
constructions of modern statutes in cases like Privacy International and Evans with the
extensive common-law amendment of older statutes in criminal contexts dealing with older
statutes like the OAPA 1861: the intention of modern Parliaments matters to us because we see
them as legislating for us, but older ones were not, so we can disregard them. To the extent to
which this is a rule that is (or can be) followed, it outs legislative intent as a fiction, and so
disproves the ultra vires theory of judicial review.
Liyanage v R [1967]
The 1946 (Ceylon) Order [as above] provided for judicial independence for the Ceylon
Supreme Court and a strict separation of powers under the Charter of Justice. The
government attempted to contravene this by passing the Criminal Law (Special
Provisions) Act 1962 to create a new punishment for the defendant insurgents.
The Privy Council held that this was contrary to the rule of law and the separation of
powers.
Gibson v Lord Advocate [1975]
, An EU regulation requiring equal access to fishing grounds was challenged on the basis
that its imposition under the ECA 1972 constituted Westminster legislating for the private
rights ‘except for evident utility’ for Scotland.
Lord Keith (of the Court of Session) denied competence to intervene: what constituted a
matter of ‘evident utility’ for Scots was a political question for the legislature and not for
the courts.
The Rule of Law
Orthodoxy
Dicey gives his definition of the rule of law three parts:
1) The ‘absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power or … wide discretionary authority’.
2) ‘Equality before the law, or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary Law Courts’.
3) The idea that public law is ‘the consequence of the rights of individuals, as defined and
enforced by the Courts’.
Commentary on Dicey
Dicey’s assertions about the UK’s lack of administrative law (and in particular his criticisms of the
French system) were later considered misguided and inaccurate by Robson.
Allison highlights that there is an expression of a formal conception in that first meaning, with
its concern for legal certainty.
Jennings criticised the conservatism in Dicey’s criticism of state expansion that motivated his
first principle of the rule of law. His and Robson’s more socialist ideas were affirmed in the
eventual state expansionism post-WW2, a move normalised by the Donoughmore Report (1933).
These state expansionist critiques of Dicey would later themselves be opposed by neoliberal
theorists who affirmed Dicey’s approach such as Hayek and Nozick. Diceyan orthodoxy also
sourced more liberal support from those seeking legal checks on executive action, such as C.K.
Allen and Lynes.
This more liberal school of pro-Dicey thinkers was itself criticised, however, by Titmuss, who
argued that this “pathology of legalism” was challenging the free exercise of discretion advocated
for by Jennings.
Formalism
