Solicitors Qualifying Examination

The UK Constitution | Public Law – SQE1 & SQE2 Exam

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The UK Constitution
State
• Legislative body
o New law and modification of law
§ Monarch
§ HoC
§ HoL
o NB: UK = bicameral, as two chambers (not unicameral)
• Executive
o Implement policy
• Judiciary
o Enforcement of law and adjudication of disputes between:
§ Individuals
§ Individuals and the State
What is a constitution?
• Safeguard rights and freedoms for individuals + obligations of individuals
• Lord Bolingbroke describes a constitution as ‘the general system
according to which the community hath agreed to be governed’ (Lord
Bolingbroke, A Dissertation Upon Parties, 1841).
• Dicey asserts that it is ‘that set of rules which directly or indirectly affect
the distribution and exercise of sovereign power in the state’ (Prof A.
V. Dicey),
• while Samuel Finer further elaborates on this notion, describing it as
allocating ‘functions, powers and duties among the various agencies
and offices of government’ (Samuel Finer, Five Constitutions, 1979).
• The fundamental basis of constitutionalism is thus the distribution of
power amongst the bodies comprising the State (Parliament, executive
and judiciary), which equates, per Barnett’s conception of
constitutionalism, to ensuring:
o Separation of powers: avoid excessive concentration of power,
per Montesquieu: ‘When the legislative and executive powers are
united in the same person, or in the same body of magistrates,
there can be no liberty’ – De L’Esprit des Lois
o This may be achieved through:
§ Limitation of power within the legal limits imposed by
Parliament and respect for individuals’ rights, as enshrined
under HRA 1998, with accountability in law respectively
through the JR and HRA mechanisms.
§ Political accountability to the electorate, every 5 years,
and to Parliament.
© Liam Porritt 2020 2
UK Constitution
• In order to consider the effectiveness of the UK’s uncodified constitution,
it is necessary first to consider its evolutionary formation.
o Current constitutional arrangements – particularly its uncodified
nature with relative flexibility (in contrast with, for example, USA)
and status as a constitutional monarchy, with remnants of
prerogative power – are a product of the gradual ad hoc evolution
since the 1688 Glorious Revolution and the Bill of Rights 1689.
o The basis of the constitution was then built on a mythology of
ancient liberties harking back to the 1215 Magna Carta and on
monarchy, which gradually evolved, especially under the
Hanoverians, into a constitutional monarchy, with no significant
moment of revolutionary change after 1688 – in opposition to in
France.
• A number of sources – Legislation; royal prerogative; case law; EU law;
customs; and conventions.
• Not entrenched (as typically are written constitutions, e.g. US where
need 2/3 in both houses + ratification in ¾ of states), and have minimal
legal protection, requiring a simple majority to repeal constitutional laws.
o Constitutional rules are arguably protected by our political culture,
through conventions and political accountability.
© Liam Porritt 2020 3
Other constitutional features (UK)
Unitary
• Most power in Westminster and Whitehall
• Some power devolved to regional bodies
o Devolved parliaments of Scotland, NI and Wales
o Councils
o London Assembly, Manchester Assembly
• Power to repeal Acts giving power remains with Westminster Parliament – they are
subordinate
• Federal States = considerable regional powers to legislate and administer their own
affairs
Devolution to Scotland
• Scotland Act 1998
• Reserved matters only for UK parliament include: o the constitution
o foreign affairs
o defence
o international development
o the Civil Service
o financial and economic matters
o immigration and nationality
o misuse of drugs
o trade and industry
o aspects of energy regulation (eg electricity, coal, oil and gas and nuclear energy)
o aspects of transport (eg regulation of air services, rail and international shipping)
o employment
o social security
o abortion, genetics, surrogacy, medicines
o broadcasting
o equal opportunities
• Consequently devolved matters include: o health and social work
o education and training
o local government and housing
o justice and policing
o agriculture, forestry and fisheries
o the environment
o tourism, sport and heritage
o economic development and internal transport
• Scotland Act 2012
o Power to set a different rate of income tax in Scotland
Neither separated nor fused
• Debate here:
o Fused: overlap between government and parliament
o Separated: identifiable and distinct bodies exercising legislative, executive and
judicial functions
Monarchy / Republic
• UK: Constitutional monarchy
o Rule of law – applies to Queen the same as to us
• Executive has significant prerogative power on behalf of crown
Flexible
• Same procedure to change constitutional legislation as other legislation (vs USA)
© Liam Porritt 2020 4
Sources of the UK Constitution
LEGAL
Legislation
• Acts with constitutional import are relatively few, from the Bill of Rights
1689 – document that legitimises the transition away from absolute
monarchy with the exile of James II, the Act of Settlement – establishing
the independence of the judiciary, the Parliament Acts – shifting power
away from the House of Lords towards House of Commons, ECA 1972,
devolution Acts (such as Scotland Act 1998) and HRA 1998.
o These are, as signaled by Jennings, the skeletal underpinning of the
UK constitution, with the flesh of the body of the constitution filled
in by other sources, especially convention.
• Dicey: all Acts have equal status and can be changed by a mere majority of
Parliament, owing to Parliamentary sovereignty, and the Diceyan notion
that Parliaments cannot bind subsequent Parliaments
o Cf PS notes on continuing vs self-embracing PS
• However, some Acts have recently been recognised as having special
constitutional status to give them a moderate degree of manner and form
entrenchment
o See: Thoburn v Sunderland City Council [2002] EWHC 195 – Laws
LJ, implied repeal of statutes does not apply to ‘constitutional
statutes’ (e.g. ECA here)
• Thus, while Parliamentary sovereignty remains, it must repeal
constitutional statutes expressly, as with the ECA 1972 in the eventual
realisation of Brexit (Miller).
No entrenched SoP
• Parliamentary sovereignty is central to the separation of powers (began
under BoR 1689, strengthened under Hanoverians effectively selected as
rulers by Parliament and continuing in Diceyan theory). However, its legal
basis is, as Loveland remarks, ‘hazy’, not deriving from statute or supralegislative constitution, but most prominently from a chain of cases
upholding the enrolled Bill rule – BRB v Pickin.
• The relationship between Parliament, the executive and the judiciary is
thus not formally delineated by a statute or constitutional document.
• E.g. Powers of court to interpret statute and develop the common law in
line with the intentions of Parliament, e.g. common law development of JR
grounds of unreasonableness and LE, but NOT to overstep into role of
Parliament in the creation of law Bland / Gillick / Re S & Re W – this is not
a clearly defined remit, but instead a matter of judicial precedent and, as
UKSC is not bound by its own decisions (Practice Statement, 1966), of
convention, with tension as to the degree to which the courts should
uphold a substantive approach to the rule of law, or respect the rigid
separation of powers.
© Liam Porritt 2020 5
Judicial Precedent
• The lack of a codified constitution results in a distinct remit for the
Supreme Court relative to in other States, where senior courts preside
over and protect the codified constitution in accordance with the times.
• By contrast, the UKSC are limited to statutory interpretation, alongside
the development of common law standards (such as JR law, developing to
promote good government, with unreasonableness and legitimate
expectation developed as grounds for review by the courts, for instance),
rather than reviewing the constitutionality of primary legislation.
• Has this led to a move towards so-called common law constitutionalism
with increasing protection of fundamental rights by the courts?
o Can merely declare a statute incompatible with ECHR, under s 4
HRA 1998; limited scope of power, which are granted by Parl.
Entick v Carrington (1975)
• Establishes tradition of civil liberties in English law and the importance of
the executive acting only as is legally justified.
Stockdale v Hansard [1839]
• House of Commons resolution alone does not qualify as law: all three
legislative estates can create law, not one.
Council of Civil Service Unions v Minister for the Civil Service (‘GCHQ’) [1985]
• The way in which prerogative power (delegated to Minister, although
applying broadly to all such power) was exercised could be subject to JR.
R v Secretary of State for Transport, ex parte Factorame Ltd and Others (esp.
no 2) [1991]
• Relationship between UK and EC law.
• UK fishing vessels to be 75% UK owned
• HoL confirmed supremacy of EU law
• No 2: ECJ: offending provisions to be disapplied by UK
• No 3: ECJ: UK could be liable for damages in an action by European Commission for
breach of EU law
• No 4: HoL: Doctrine of State liability ~ damages can be awarded against MS for losses
suffered by private parties
A and Others v Secretary of State for the Home Department [2004]
• Section 23 of Anti-Terrorism, Crime and Security Act 2001 – detention
without charge or trial
• Incompatible with ECHR, art. 5
• Derogation from this article through HRA 1998, Order 2001, but HoL said
did not satisfy required criteria – quashed and s.23 declared incompatible
under s 4 HRA 1998
© Liam Porritt 2020 6
Royal Prerogative
• Recognised by common law: constitutional significance
• Some for Crown, some for executive
• Queen only:
o Royal assent
o Appointing PM
§ Individual and collective ministerial responsibility protects
the Crown here
o Dissolving parliament
• Signing treaties by PM
• Deploying troops
• Cabinet meetings
• HMRC collecting taxes on behalf of the Crown
• Home Security issuing passports on behalf of the Crown
European Union/International Law
• Treaties
• Regs, Directives and Decisions
• Case law from ECJ
© Liam Porritt 2020 7
NON-LEGAL
Conventions
• Dicey: ‘… conventions, understandings, habits or practices, which, though
they may regulate the conduct of officials are not in reality laws at all
since they are not enforced by the courts’
• Jennings + Marshall and Moodie: behaviour considered to be binding by
and upon those who operate the constitution, but which are not enforced
by law courts – binding in operation but not in law.
• Conventions are much more flexible and can be created and dissolved
without the need for legislative process
1. They modify legal rules, filling in the gaps (per Jennings) in the
constitution / in the law, enabling constitutional standards to move with
the times in an informal way.
Ø Esp. in relation to PPs – convention that the monarch will not
refuse assent of an Act of Parliament
2. Govern the system of political accountability – individual and
collective ministerial responsibility (see next)
Ø See Jennings three-stage test for convention: Reference Re
Amendment to the Constitution of Canada
3. Govern relationships between different groups (SEPARATION OF
POWERS) and practices of official bodies
Ø e.g. Executive and Parliament – see examples below, inc. War
Powers
Examples of Conventions relating to legislature
• HoL defers to HoC, espc. when bill promoting election manifesto
commitment – Salisbury Convention
• Financial bills only in HoC + by a cabinet minister
• Parliamentary committees reflect parties’ relative strength in HoC
• MPs have access to the Crown through the Speaker
• ‘War Powers’ convention – convention strengthening over the course of
Blair, Browne and Cameron governments ~ HoC approval required for UK
troops committed
o Exception: May’s April 2018 air strikes on chemical weapons
facilities used by Assad regime – justified by urgency
© Liam Porritt 2020 8
Examples of Conventions relating to the executive
• Monarch acts on advice of ministers
• ‘Royal Assent’ never refused
• HoC majority = PM
• PM + Chancellor = HoC members
• No confidence vote = resign + dissolve parliament
• Bills affecting monarchy ~ must ask for Royal Consent before introducing
to parliament
Examples of Conventions relating to judiciary
• Judges not politically active
• Judge’s professional conduct not criticized in Parliament, except motion of
dismissal
Examples of Conventions relating to Commonwealth and devolved
governments
• Governor-General of Commonwealth country appointed by Queen on
advice of country concerned
• UK Parliament – not legislate for independent Commonwealth nation
unless asked
• Sewel Convention: Westminster not to legislate with regard to devolved
matters in Scotland without consent of Scottish parliament (1998).
Jennings’s Three-Stage Test for a Convention
Conventions must have some utility
1. What are the precedents?
2. Did the actors in the precedents believe that they were bound by a rule?
3. Is there a constitutional reason for the rule?
Reference Re Amendment to the Constitution of Canada (1982) – Supreme Court
of Canada:
• Set out that the ‘purpose of constitutional conventions is to ensure that
the legal framework of the constitution will be operated in
accordance with the prevailing constitutional values and principles
of the period’ ~ conventions are not legally enforceable or binding, but
allow the law to move with the times.
• Approved the Jennings Test ~ finds: federal government changing
constitution without consent of provinces would be unconstitutional (on
basis of convention)
• Thus, SC judgment had an effect, even though would not have been in law.
• Similar to Woolmer Oil case – conflict between statute and conventions,
statute overrides.
© Liam Porritt 2020 9
Law Over Convention
• Madzimbamuto v Lardner-Burke – Privy Council = convention that UK
should only legislate for Commonwealth countries with the consent of the
country in question is not binding; UK statute takes priority.
• HM Treasury v Information Commissioner
o Convention that government does not have to disclose advice by
their lawyers
o Freedom of Information Act 2000 – in conflict with convention?
o No, on legal basis of FIA, but recognising convention in decision
• Attorney-General v Jonathan Cape Ltd. And Others [1976]
o Convention not binding on English courts
o Records of specific goings-on of Cabinet Meetings and their
disclosure by (ex-)Ministers
o Become available to scrutiny under the Public Records Act 1967
o However, convention that these will not be published before this,
especially containing opinions of specific Ministers
o While convention not binding, its existence did assist in the
development (enlargement) of the existing common law to
include conventional rule:
§ Duty of confidence already established in commercial
dealings (Salman Engineering Co. Ltd. V Campbell
Engineering Co. Ltd.) + extended to marriage (Duchess fo
Argyll v Duke of Argyll)
§ HELD: Cabinet Minister can be restrained by court from
publishing confidential information from Cabinet, where
that restraint is more in the public interest than publication
• R (Evans) v Attorney-General
o Prince of Wales + convention around his ‘education in the business
of government’, as heir to the throne
o Convention undermined by request of journalist (Evans) for
disclosure of correspondence between Charles and Ministers
o SC: Must disclose!
• R (Miller) v Secretary of State for Exiting the EU
o Sewel Convention re: needing consent of Scottish government on
devolved matters
o This is written in to Scotland Act 1998 (s. 28(8)) by Scotland Act
2016
o Therefore, convention became a legal obligation?
§ No – acknowledgment of convention but not a legal rule
§ In judgment, Lord Neuberger: ‘we do not underestimate the
importance of constitutional conventions […] But the
policing of its scope and the manner of its operation does
not lie within the constitutional remit of the judiciary,
which is to protect the rule of law’.
© Liam Porritt 2020 10
Custom
• Customs = rules of conduct recognized by the judiciary as having binding
force
• Parliament: functions, procedures, privileges and immunities –
regulations, standing orders or unwritten
o R v Chaytor and others [2010]
o Bill of Rights 1688 art.9 – parliamentary privilege
o Claims of expenses do not enjoy parliamentary privilege: only that
of which the declaration would have an adverse affect on the
essential business of Parliament is covered.
• Gordon Brown’s refusal to leave No 10 when he lost general election prior
to coalition
Academic Writers
• Academic writers may be said to be of persuasive value in English courts,
being regularly cited by judges.

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