1. Peter Leyland Sources of the Constitution

2. Introduction Sources of the UK constitution are the main focus of today’s lecture. We will see that there are a wide range of sources. Contrast made with codified US constitution There has been recent debate over what might be termed ‘constitutional statutes’. Review of other constitutional sources. Defining conventions and understanding their constitutional role.

3. The British Constitution is not contained in any one document nor is there such a thing as higher order law, entrenchment. The Constitution evolved over time and this evolution was first about qualifying the absolute power of the King. Magna Carta 1215 imposed limitations on Royal power. Bill of Rights 1689 laid out basic rights but mainly recognised the shift of power from the King to Parliament. No taxation, army etc. without Parliament. Great Reform Act 1832 important step in redistribution of seats and the grant of the right to vote. Parliament Acts 1911 and 1949 imposed limitations on the powers of the House of Lords. Why does the UK have an uncodified constitution?

4. Contrast with USA Article I – ‘All the legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ Article II – ‘The executive Power shall be vested in a President of the USA. He shall hold office during the term of four years …’. Article III – ‘The judicial power of the United States shall be vested in one Supreme Court. Article IV - ‘Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. … The United States shall guarantee to every state … a republican form government. (Federal system established.). Article V - Defines method of amendment.

5. Sources of the Constitution If we wanted to describe the UK constitution it would consist of a range of different sources. Statute law: some are of central significance, see below Common law e.g. Entick v Carrington [1765] European Union law since 1973 – Multi-Layered European Convention on Human Rights since HRA 1998 in force since October 2000. Legal treatises e.g. works of Dicey/Bagehot etc. Law and custom of Parliament, which regulates itself but is outside the jurisdiction of the courts Royal Prerogative powers of the monarch, now normally exercised by ministers Constitutional conventions of special importance to flesh in the missing bits.

6. What are constitutional statutes? Bill of Rights 1689 - limited powers of monarchy Act of Settlement 1700 - protestant succession Act of Union with Scotland 1707 – combined English and Scottish Parliaments. Reform Acts of 1832/1918 right to vote Parliament Act 1911 (restricted powers of House of Lords) Statute of Westminster 1931 (from Empire to Commonwealth) European Communities Act 1972 incorporated Treaty of Rome i.e. EEC membership. EU law part of domestic law for the first time. Devolution legislation e.g. Scotland Act 1998 Human Rights Act 1998 incorporated ECHR

7. Thoburn v Sunderland City Council [2003] Laws LJ : 'In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental... And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes'.

8. Recent constitutional statutes Constitutional Reform Act 2005 consolidated separation of powers, created a Supreme Court for the UK and transformed the system of judicial appointments. Constitutional Reform and Governance Act 2010 put some prerogative powers e.g. the ratification of treaties and the management of the civil service on a statutory footing. Fixed Term Parliaments Act 2011 qualifies power of PM to call elections by setting elections at 5 years unless government falls following a vote of confidence.

9. Common law Case law / judicial precedent - case law of decisions which expand the common law and interpret statutes. For example, individual rights in relation to police powers, Entick v Carrington (1765). This case was exceptionally important because the courts were prepared to stand up against the highest authority. An attempt by the government to seize papers and arrest without a warrant. Lord Camden ‘The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.’ But decisions of the court may be amended / overridden by a later statute, e.g. Burmah Oil v Lord Advocate [1965] and the subsequent War Damage Act 1965. Statute law will prevail.

10. European Union Law From 1973 EC law (now EU law) became a source of the constitution, applicable in areas defined by the Treaty(ies) - sources include the Treaty(ies) and Regulations, Directives, and Decisions - all are binding. Also note rulings and decisions of the ECJ - where their is conflict with national law EC law prevails - the courts must interpret EC law in line with Community objectives – (the primacy doctrine) - it is...”part of our law. It is equal to any statute...” Per Lord Denning in Bulmer v Bollinger [1974]

11. Constitutional conventions Conventions are more important in the UK constitution and often determine the conduct of the political actors e.g. Crown, PM, ministers, civil servants, judges. Conventions according to Dicey are: customary rules which determine how the discretionary powers of the state were exercised: ‘…the “conventions of the constitution”, consists of maxims or practices which, though they regulate the ordinary conduct of the Crown, of ministers, and of other persons under the constitution, are not in strictness laws at all’, in particular, conventions unlike laws are not enforceable in the courts. Main role for Dicey is to determine the way the prerogative powers of the Crown are exercised in practice.

12. Further definitions of conventions Sir K Wheare - "By convention is meant a binding rule, a rule of behaviour accepted as obligatory by those concerned in the working of the constitution" (Modern Constitutions, p 179). It amounts to a rule of moral obligation of most use when least needed – permeated by values such as the rule of law, separation of powers, democracy, accountable government, etc. Jennings - Law and the Constitution - "provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas" i.e. (Brazier): (1) enable rigid legal framework to be kept up to date re changing needs of government (2) oil formal machinery of government - make government work, in this sense they have a practical.

13. Why conventions emerge Development of unwritten rules often one brought about by evolution / adaptation - most created after 1688. E.g., last time PM came from Lords in 1902. But after the right to vote had been extended to most of the population, legitimacy crucial. The Royal assent last refused in 1708 (Queen Anne & refusal of Scottish militia) - creation Cabinet / PM. The problem here is to know when a practice has hardened into a rule.

14. How to determine whether there is a convention Jennings - 3 tests for recognising valid convention: (used in Re Canada below) (1) is there a precedent? (vague - political rules not like legal precedents) How often and how consistently has the practice been observed before? E.g., PM from majority party; (2) Do those operating the constitution accept conventions as binding. Do they feel under an obligation to act - Ministerial responsibility? In other words conventions depend on consent. (3) is there a good political reason for the convention? Deference of House of Lords to Commons (Jennings,pp 136-9). Also Jennings pointed out that the only real way of knowing if a convention applied is by the conduct of the constitutional actors.

15. Conventions and the courts A-G v Jonathan Cape [1976] QB 752 - Lord Widgery LCJ – a convention can give rise to an action in equity re the principle of confidentiality. This was one of the great cases on interpretation of conventions and legal rules. The Government moved to prevent publication of the “Crossman Diaries” by obtaining an injunction – This was on grounds of tort of breach of the equitable doctrine of confidentiality re Cabinet discussions (collective responsibility) - confidentiality recognised, but publication allowed because material in Diaries 10 years old. Therefore there was no harm to public.

16. Why are conventions so important? Royal assent to legislation is never denied. It recognises the Act of Settlement limiting the powers of the monarchy. If government loses its majority in the House of Commons it will resign and call an election. Because it can no longer legislate. PM and Chancellor of the Exchequer must be members of House of Commons i.e. answerable to the elected house Other ministers must be members of House of Commons/House of Lords - leading ministers Cabinet speak with a single voice i.e. collective responsibility After an election leader of largest party will be invited by the Queen to form a government and become PM. Acknowledgment of the democratic process. But this assumes a majority in House of Commons.

17. Conventions and ministers Collective cabinet responsibility originated from the need to give unified advice to the monarch. It requires that all cabinet members stick with any decision one agreed by the whole cabinet or otherwise resign. Heseltine resigned after the Westland Affair in 1985. Useful tool for the PM as it encourages unity. Individual ministerial responsibility concerns accountability of government departments and proposes that it is the minister who directs the department. It is she and not civil servants who is ultimately responsible when things go wrong. But does that mean that ministers are obligated to resign.

18. Conventions and the judiciary Law Lords by convention did not enter into controversial political debate on general matters or vote on routine legislation. Now (i.e. from 2009) Supreme Court judges are given peerages but expressly excluded by statute from participating as peers in the House of Lords in its legislative capacity while continuing to work in their judicial capacity. This convention might be viewed in light of the wider judicial role. What Lord Bingham termed ‘institutional competence’ meaning that the judiciary should not trespass into the territory occupied by the executive in making decisions over such matters as resource allocation.

19. Failure to follow conventions For Dicey because failure to obey will lead to legal difficulties - e.g. Parliament has to assemble each year because financial resolutions are essential for the budget to pass. Yet if peers took part in judicial function of Lords, no legal sanction. Rather, for Jennings political difficulties if conventions not enforced it is not legal but a political crisis which will occur. For example, the Parliament Act 1911 followed the 1909 budget clash with the House of Lords. The Lords breached the convention re financial matters prompting the crisis. The effect of the Parliament Act is to give what was the convention legal force.

20. Conclusion (1)UK constitution comprises many different sources, most are written but not contained in a single document. (2)Statute law is particularly important and some recent statutes such as the devolution legislation and the HRA have the effect of sketching out important aspects of the constitution. (3)Many crucial areas determined by conventions, some of which are quite vague. (4)Little prospect of a codified constitution because of the difficulty of reaching consensus on what to put in it. (5)Dicey’s twin doctrines of parliamentary supremacy and the rule of law assume particular significance as part of the uncodified constitution. See weeks 3, 4, 5.