British Constitutional Questions

What is an unwritten constitution? It does not mean that the UK constitution does not have written sources. In fact it could be said that all the sources are in some sense written. It means the constitution was not promulgated at one time. Rather it has evolved over many generations. The sources are diverse and so the extent of the unwritten constitution is uncertain. E.g. does it include all statutes and all cases, if not, which ones? Unlike most other constitutions, including the Italian Constitution, there is no special method of changing the constitution, no formal method of entrenchment (rafforzamento).

Describing the unwritten constitution What are constitutional statutes? Magna Carta 1215: Barons placed limitations on royal authority and recognition of rights e.g. right to fair trial. Bill of Rights 1689: monarch must rule through Parliament Great Reform Act 1832: extended franchise and distributed seats to unrepresented towns. Reform Act 1918: adult suffrage, votes for women over 30. Parliament Act 1911: restricted power of House of Lords European Communities Act 1972: EU membership and it qualified sovereignty Devolution legislation e.g.Scotland Act 1998, GWA 1998, NIA 1998 Human Rights Act 1998: European convention effectively incorporated into UK domestic law.

Describing the unwritten constitution: What is common law? Judge made law rather than statute law It develops incrementally from decision to decision Based on binding precedent: Higher courts bind lower courts. Three basic levels can set precedents: High Court, Court of Appeal, House of Lords (soon Supreme Court) e.g. if question is decided by House of Lords and similar case later comes before the Court of Appeal, High Court or County Court the decision must be followed. Not all the judgment is binding, only the ‘ratio decidendi’ i.e. reason for deciding. Identifying the ratio is a technical question.

Examples of Constitutional Cases Whole areas of law are formed from common law decisions e.g. contract and tort but some decisions significant for constitutional reasons: Principles of justice: Dr Bonham’s Case (1610) ‘no man can be a judge in his own cause’. This case held that: ‘The king has no prerogative, but that which the law of the land allows him’ but now recognised that statute law overrides common law. Five Knights case (1627) King’a consent to his prerogative being examined by the courts; Ship Money Case (1637) prior to the Civil War (1642) contesting general attempt to introduce a form of taxation without the authority of Parliament; Entick v Carrington (1765) established that: No government measure which infringes my liberty is lawful unless it is authorised, and the burden is on the executive to prove authorization. Council for Civil Service Unions v Minister for the Civil Service (1984) GCHQ Case: Confirms judicial review of the prerogative and statement of the grounds of judicial review.

Summary of sources Statutes: particularly ones dealing with constitutional matters. Common law: cases which establish constitutional principles; Law and custom of Parliament separately claimed from monarch i.e. right of parliament to regulate its own proceedings; Constitutional and legal treatises e.g. Dicey, Bagehot, Jennings, Wade. Academic accounts of the constitution elucidate how the constitution works; EU law and ECHR law since 1973 and 2000 respectively; Constitutional conventions: these are rules of constitutional practice not enforceable in the courts but which determine how constitutional actors behave in many situations.

Why conventions are so important? The unwritten constitution is incomplete, in the sense that much of what actually happens is determined by conventions i.e. constitutional practice. Key conventions represent the passing of power from the monarch to democratic institutions or the way democratic institutions are expected to behave. Up until Civil War 1642 kings could veto legislation, decide when to call Parliament, chose ministers/government etc. Each of these powers is now constrained by a strong convention. Royal assent and regular parliaments become the norm following Bill of Rights 1689 As Parliament assumed a higher profile the King or Queen became increasingly obliged to select the leader of the strongest grouping to form a government. Now there is a strong convention requiring the leader of largest party to become PM and he or she, not the king, selects the government.

Breaking conventions This rarely happens but... If a convention is broken it will often lead to a constitutional crisis and may result in the passage of a law to prevent it occurring again e.g. House of Lords broke convention acknowledging predominance of elected House of Commons over finance by blocking 1909 budget. After two elections and negotiation, including threat by King to create sufficient peers to override conservative majority in upper house, Parliament Act 1911 confirmed the convention and made it thereafter impossible for the Lords to veto financial legislation again.

Ministerial responsibility and interpreting conventions Individual ministerial responsibility describes the relationship of constitutional accountability between ministers, the civil service and Parliament. In theory the Secretary of State formulates policy and is answerable before Parliament for that policy. On the other hand permanent and neutral civil servants implement policy. What happens when things go wrong? Should ministers resign? Very rare for them to do so for policy failings but they are answerable to Parliament. Changes to the way government operates arguably undermines the convention e.g. special advisors, new ways of managing civil service and increasing reliance on private sector to deliver policy.

Government must maintain its majority in House of Commons This convention lies at the core of the constitution. In order to remain in power a government must command a majority in the elected house. If there is a vote of confidence and it loses its majority the PM goes to the Queen or King and election will be called. The reason for this convention is obvious. A government without a Commons’ majority is incapable of passing legislation PM Callaghan loses such a vote and an election is called. Mrs Thatcher then becomes PM.

What is ‘elective dictatorship’? In light of the convention that the government must maintain its Commons majority to survive, the party managers (whips) can put enormous pressure on MPs of the ruling party to support the government line or risk defeat in a vote of confidence (and, in consequence, an election). In practice, this means that the government can be sure to get its legislative programme enacted. The fact that MPs of the governing party nearly always are ‘lobby fodder’ allows the PM, cabinet (party machine) to steamroller policy through parliament and that its scrutinizing capacity may be compromised. The parliamentary system in Italy (Article 94) also depends on the government enjoying the confidence of parliament, but until recently with less stability because the government has tended to be formed from a coalition of large and smaller parties, any one of which might break lose triggering a vote of confidence.

Is an unwritten constitution flexible? Codified constitutions often have a protracted amendment procedure. USA: two thirds majority in both houses plus ratification by three quarters of the states. Italy: double vote in parliament plus referendum, unless two thirds majority achieved on second vote. Relatively few amendments allow basic principles to remain and the constitution to be a lasting settlement. No such mechanism in UK because doctrine of sovereignty means that any act of parliament can express repeal a previous act. Supposedly permanent Act of Union with Ireland 1800 was effectively overridden by the formation of the Irish Republic and eventually repealed. On the other hand, where ‘constitutional statutes’ e.g. European Communities Act and devolution have been supported by referendum it is argued that it would be wrong to repeal such measures without also holding a referendum.

Does the British Constitution have any fundamental principles? (1) Sovereignty of parliament arising from the Bill of Rights is the grundnorm which recognises that parliament, in theory, is the source of all power and that it has an unlimited capacity to pass or repeal any law. Suggests that there is no higher order law and that Parliament cannot bind its successors. Has sovereignty actually shrunk? EU membership, devolution and Human Rights Act qualifies sovereignty in important respects. According to Dicey Sovereignty operates in harness with his second principle. (2) Rule of Law qualifies sovereignty because this principle recognises the predominance of regular law over arbitrary power and equality before the law. In other words it requires all bodies, including the government, the police, army etc to act lawfully. It also suggests a separation of powers by recognising the capacity of the courts to intervene decisively if any public body acts unlawfully by exceeding its powers.