PART 1: CONSTITUTIONAL IDENTITY, SOURCES AND

PRINCIPLES

CONSTITUTIONAL IDENTITY AND SOURCES

1. INTRODUCTION: ​28th September
2020
- Does not have a constitution in the sense of a single coherent code of fundamental law which
prevails over all other sources of law.

- Developed over time in a pragmatic and principled way through a combination of statutes,
events, conventions, academic writings and judicial decisions

- Constitutions are also made up of non-legal customs which cannot be written down.

- AV DICEY​: ‘most flexible polity in existence’ ​[Introduction to the Study of the Law of the
Constitution, 8th edn (1915), p 87]

- HAILSHAM: ​“one of the most successful political structures ever devised” -- ​McLean​ and
Bentham​ disagree

● What is a constitution and what does it do?

○ Narrow meaning:​ document having a special legal status which sets out the
framework and principal functions of the organs of government and declares the
principles or rules by which those organs must operate

○ House of Lords Committee on the Constitution 2001:

“the set of laws, rules and practices that create the basic institutions of the State and
its component and related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions and the
individual”

○ BOLINGBROKE​ in 1733 stated:

“By constitution we mean, whenever we speak with propriety and exactness,
that assemblage of laws, institutions and customs, derived from certain fixed
principles of reason, directed to certain fixed objects of public good, that
compose the general system, according to which the community hath agreed to
be governed”

○ Primary function:​ To empower the government to serve the people and represent them
for the reason elected

○ Secondary function:​ To control and restrain the activities of governments and place
legal limits on powers

● Does the United Kingdom have a constitution?

○ Yes, every legal state has a constitution, whether codified or uncodified (body of rules)
 ○ It has an unwritten constitution. It does not mean it has a poor constitution and
government (written constitution wouldn’t make a difference; New Zealand - good,
unwritten)

○ All written documents leave important things unsaid as customary rules and principles
evolve with new conditions - ​KING ​(Does the UK Still Have a Constitution?)​ ​and
FOLEY ​(​The Silence of Constitutions)

● What is the United Kingdom?

​

○ Great Britain (England, Wales and Scotland) and Northern Ireland

○ GB was created by a union in 1700s by ​Treaty of Union 1707

○ Union of GB and Northern Ireland in the early 1900s.

○ 1920 - Northern Ireland created with devolution of legislative powers of

self-government. Removed in 1972 and then restored in 1998.

● United Kingdom of what, and for how long?

○ Uncertain future of the UK with Brexit and other political pressures and tensions.

2. CHARACTERISTICS OF THE CONSTITUTION:

Geographical Boundaries

● Has shrunk over the years from the British Empire. Now limited to primarily the UK

● 1931 Statute of Westminster - UK Parliament gave up the authority to legislate four main
dominions. Convention to legislate the Commonwealth nations only with their consent

● Canada could amend their constitution only after a Westminster Act of Parliament. Brought to
and end in 1982
Three Guiding Principles

● Rule of Law:

○ Longstanding principle popularised by Oxford academic ​A V Dicey​ writing ‘Introduction

to the Study of the Law of the Constitution’ where he discussed this principle.

○ Formally recognized in ​Constitutional Reform Act 2005​ (s1.) and ​Ministerial Code
2019​ ​(paragraph 1.3 says the ministers are required to act in accordance to the law)

● Parliamentary Sovereignty:

○ R (Miller) v Secretary of State for Exiting the EU [2017]​:​ ​The Supreme Court ruled
that only with the authority of the parliament can the government trigger Article 50 of
EU and begin the exit process. An important case depicting the principle of
parliamentary sovereignty.
 ○ R (Miller) v Prime Minister; Cherry v Advocate General [2019]:​ ​Government was
finding the Parliament pestering and requested the Queen to prematurely prorogue the
Parliament and prevent it from interfering. The Supreme Court ruled that the
government had no legal authority to do so. (Issue of ‘Responsible Government’ by
undermining the Parliament)

● Responsible Government:

○ Idea that Government and the ministers individually are responsible to the parliament
(convention called Westminster System of Government)

○ In order to be a government minister you need to be a member of parliament. They

derive their powers from the Parliament and are held accountable to it.

○ It is not a legal principle, however breach of this principle will have legal consequences
as seen in ​Miller II​.
Written v Unwritten

● We do not have a codified constitution from a single coherent code of fundamental law like
US, France, Germany, Sweden but have one from multiple written sources

● French and American Revolution introduced the constitution as a “single document” and was
stressed by ​Thomas Paine​ in ​“The Rights of Man”​: “A constitution is a thing antecedent to a
government, and a government is only the creature of a constitution… A constitution is not the
act of a government, but of a people constituting a government, and government without a
constitution, is power without a right”

● The Constitution is not as unwritten as it used to be in the past: devolution to Scotland, Wales
and N. Ireland, the Human Rights Act 1998, the constitution can be found in statutes and
judgements, such as the ​Bill of Rights 1689, the Act of Settlement 1701, the Parliament
Acts 1911 and 1949​ and the changes in the electoral law and emergence of documents like
the Ministerial Code and Code of Conduct for MPs → ​subject to written rules/ laws
Unitary v Federal v Hybrid

● US, Australia and Germany are Federations where power is divided among the states but
there is a link between states and centre

● UK is mostly a Unitary state with a single source of legal authority (now there has been some
legislative devolution)
Centralised v Decentralised

● UK can be considered a Hybrid state as it is now slowly decentralising through devolution.

Devolution related to 8 mill people out of 65 mill = most of us live in central state
 ● England is a very centralised state with a weak local government (exception to London)

● Recent reforms have taken power from local governments and given them to the central
(Coronavirus outbreak testing authority is with the Centre)

● That is a challenge as it is difficult to govern from the centre in matters with granular detail

● Devolution has been paradoxically associated with centralisation of powers

Dynamic v Static Nature

● UK Constitution is very dynamic and constantly changing

● Major changes in the last 20 years

○ Devolution of legislative powers in Scotland, Wales and N. Ireland

○ Human Rights Act 1998

○ House of Lords Reform Act 1999​ (removed large number of hereditary peers in the
second chamber)

○ Withdrawal from EU and restatement of fundamental constitution principles and

reallocation of legal authority

○ Fixed-Term Parliament Acts (fixing periods of election so 5-year cycle)

■ 2019 legislation to override this as it was no longer convenient

Rigid v Flexible

● Rigid would be a written constitution, difficult to amend.

○ Ireland requires a constitutional referendum with approval of the legislature and the
people.

○ Australia is also very difficult to amend (double majority) - majority of the people in
majority of the states

○ US requires approval of Congress and then three-quarters of the state

● UK is quite flexible in principle and can be amended by Act of Parliament (House of Commons
→ House of Lords → Royal Assent)

● In reality, there are certain procedure government adopts before a reform for political reasons,
even though they aren't legally required to:

○ Parliaments Act of 1911 to reduce power of House of Lords required a general election
for the people to vote on the amendment

○ During the Blair government from 1997, there has been popularity of a referendum to
assure popular support

■ First referendum in 1975 on European Communities (now EU) membership

■ Then in 1997 on the Scottish and Welsh devolution (after fail in 1979)
 ■ 2011 proposals to reform the electoral system (fail)

■ 2014 Scottish Independence (fail)

■ In Northern Ireland - to remain part of UK in 1973; and to approve Good Friday

peace agreement in 1998

○ Some legislation ​requires​ a referendum for its amendment such as ​Northern Ireland
Act 1998 ​(s1.) and ​European Union Act 2011 ​(to give further powers to EU; soon
defunct)

● There has been continuity and stability in structure of the institutions of the government since
the past 200 years
Political v Legal

● Political constitution = refers to on which emphasises the role of political institutions like the
parliament

● Legal constitution = would ensure legal control and boundaries on the institutions and
individuals

● UK is historically a political constitution with very little judicial intervention. In recent years,
courts and judges have become more assertive to scrutinize parliament and government

● Conservative Party Manifesto of General Election 2011 included reforms to reduce judicial
powers as it restricts the powers of the governments

○ In recent years the courts have intervened in the Brexit process which has angered
some ministers. Judicial power irritation illustrates that ministers have deviated from
legal principles and established constitutional obligations

○ Labour Governments in the 1970s had greater intervention by courts as it was

departing from legal principles - provides us with insight on the current anger and noise
Power conferring v Power restraining

● UK is principally power conferring as the constitution empowers the government primarily and
then restrains it
Constitutionalism and ‘democracy’

● Idea from which the state’s authority and legitimacy may be said to derive, and which may
help to protect the rights of individuals and minorities.

● Constitutionalism​ = the doctrine that claims that political authority should be bound by
institutions that restrict the exercise of power
 ● Following constitution is a precondition of a democratic system, although other systems of
governments also have a constitution. Democratic parliament, respect for the law, and a
system of courts is necessary for a liberal government

● The disbelief in government and its limitless power has made people call for a ‘constitutional
settlement’ → numerous reforms since 1997 but ​no widespread support for a written
constitution.

WALTER BAGEHOT​ ​in ​The English Constitution (1867):

● distinguished between the dignified and efficient parts of constitution based on characteristic
merit

● dignified​ = ‘which excite and preserve the reverence of the population’

○ very complicated and somewhat imposing, very old and rather vulnerable

● efficient​ = ‘by which it, in fact, works and rules’

○ at least when in great and critical action, is decidedly simple and rather modern → due
to the vast changes in the efficient part, the statement can be seen as a misleading
claim

● (WB did not say:) the royal commission on the constitution said in 1973: “The UK already
possesses a constitution which in its essentials has served well for some 100 of years”

Difficulties in defining constitutional subject

1. Many rules under which government operates do not have the force of law (knowledge of only
legal rules is insufficient)

2. No sharp demarcation between constitutional law and political constitution or between

constitutional law and other branches of law:

❏ Administrative law​ = constitutional law is mainly concerned with the structure of

primary organs of government whereas administrative law is concerned with rules of
official agencies in providing services and in regulating activities of citizens

❏ Public international law​, which is a system of law whose primary function is to

regulate relations of states with one another through diplomacy, treaty making whereas
constitutional deals with internal structure of state and its relations with people in its
jurisdiction
 Internalisation of Public Law​ = because of evolving interface between constitutional
law and international → courts in the UK are dealing with the effects of what has been
called the ​‘internationalisation of public law’

MONIST DUALIST

Tradition seeks to assimilate the national and international Followed in the UK, tradition operates on 2 distinct levels
legal systems of national and international law

When a state is in breach of an obligation at international law, the state may not plead in an international forum that its
government has no power under national law to take action required by international law.
International law bodies can intervene in national jurisdiction in cases like human rights

Dualist tradition was the basis for the litigation in R

(Miller) v Secretary of State for Exiting the EU [2017]
R (Miller) v Secretary of State for Exiting the EU [2017]
● The reason why the government believed and argued that it was entitled to exercise the royal
prerogative, without the need for statutory authority, to leave the EU was because a notification of
withdrawal is an act under the international treaty which forms part of the constitutional law of the EU
(TEU)

- Dualism means that an act on the international law plane is, in general terms, irrelevant in
domestic law
● The counter argument was that while that may well be the ordinary case, the particular nature and
incorporation of EU law into domestic law meant that it would in fact have very ​significant potential
ramifications on the domestic law​ plane, and so required statutory authority

★ EU already has a ‘constitution’ based on the treaties it created, decisions of Court of Justice of
EU and agreements and practices by which it functions

★ Comes under ​BOLINGBROKE​ ​definition of ‘assemblage of laws, institutions and customs’

○ 2005 attempt for a formal ‘EU Constitution’ = failed by referendum in Netherlands &
France

○ December 2009 ​Lisbon Treaty ​became effective = w/o political sensitivity as didn’t
use the word ‘constitution’

3. LEGAL SOURCES OF THE CONSTITUTION:

In unwritten constitution, ​(a)​ ​Legislation​ (or enacted law): including Acts of Parliaments, legislation by
parliamentary powered ministers/authorities, legislation by the Crown under prerogative powers and
from 1973 to ‘exit day’, EU legislations; ​(b) Judicial Precedent ​(or case law): decisions of courts on
common law or interpreting legislation. Currently includes CJEU, HRA 1998 and ECHR

Legislation

1. Magna Carta
- Granted in 1215 by King John under pressure from nobles

- Originated trial by jury and habeas corpus

2. Petition of Right 1628

- Contained protests against taxation, arbitrary imprisonment, commissions of martial
law and use of soldiers on people
3. Bill of Rights ​and​ Claim of Rights
- ‘Glorious Revolution’ of 1688 in Scotland and England

- House of Lords in England approved Bill of Rights and Scottish Parliament the Claim
of Rights In 1689

4. Act of Settlement 1700

5. Other Statutes:
- Act of Union with Scotland 1707

- Parliamentary Acts 1911 ​and​ 1949

- European Communities Act 1972

- Wales Act 1998 ​and​ Northern Ireland Act 1998

- Human Rights Act 1998

- House of Lords Act 1999

- Constitutional Reform Act 2005

- Scotland Act 2016 ​and​ Wales Act 2017

- European Union​ (Notice of Withdrawal)​ Act 2017