Kay Chap02

8/12/2019 Kay Chap02

1/18

R. Clements and J. Kay chap02.tex V1 - November 4, 2006 3:21pm Page 4

2The nature and sources

of constitutional law

IntroductionFor many this is the most difcult area of the whole subject. It is rather theoreticaland seems to have no beginning and no end. Different lecturers have very differentapproaches in this area. Some like to include a lot of political theory and others do not.

There is a fairly traditional set of issues that have been considered relevant to thenature of the British constitution. For reasons of space this book has restricted itself to them. We hope, though, that the techniques indicated in the Suggested Answerscould be applied to other constitutional questions. These questions might be general,such as, what is democracy?, is Britain democratic?, what is the nature of the state?,explain limited government and the concept of legitimacy? More specic issues such asfederation or the lack of written constitution might also be investigated. In some respectsthese are just more modern ways of asking the old questions like, what is the rule of law?,does a separation of powers control the executive? Often the same sort of material, e.g.,cases, past political incidents, academic opinion crops up whatever the question being

asked. For example, a famous case like Council of Civil Service Unions v Minister for theCivil Service [1985] AC 374 could be used to illustrate arguments relating to convention,the rule of law, the separation of powers, the lack of a written Bill of Rights as well asthe attitudes of the courts to the state and the unlimited power of the government.

A good starting point is, why do we or any country have a constitution at all? Theobvious answers are: rst, to limit the power of the government so that it cannot dowhatever it likes; secondly, to protect the rights or liberties of the individual not justfrom the government, but also from other powerful groups; and a third less obviousreason is legitimacy. Why do we, the people, accept that this particular group of

people is entitled to govern us and make laws? This is often a function of a writtenconstitution: such documents often say that the people of the country have decided uponthese particular constitutional arrangements. For example, We the People of the UnitedStates . . .do ordain and establish this constitution for the United States of America.

8/12/2019 Kay Chap02

2/18

R. Clements and J. Kay chap02.tex V1 - November 4, 2006 3:21pm Page 5The Nature and Sources of Constitutional Law 5

Britain is different: it is one of the few countries in the world without a writtenconstitution. Most British constitutional writing would claim that, despite this, Britaindoes have a constitution. Some critics, however, dating back to Thomas Paine in theeighteenth century ( The Rights of Man , 1792) and continuing into modern times (e.g.,F.F. Ridley, There is no British Constitution: A Dangerous Case of the EmperorsClothes, 41 Parliamentary Affairs (1988)) claim that Britains arrangements are sodefective that there is no constitution at all as none of the three aims listed in theprevious paragraph has been achieved.

The traditional view is that Britain does have a constitution, but it can be foundelsewhere than a single written document (e.g., Introduction to the Study of the Law of the Constitution , A. V. Dicey, 1885; The Law and the Constitution , Sir Ivor Jennings,1959). It can be found in Acts of Parliament and cases, but unlike a written constitution,both can be changed and have no special protection. This exibility and evolution issupposed to be the advantage of the British constitution.

Much of the constitution does not exist in any legal form at all. Conventions, in otherwords, customs, habits or understandings, are said to ll the gaps. Vitally importantmatters like the existence of the Prime Minister and the real powers of the Queen aregoverned by convention.

This is still not enough, so it has been argued that there are sets of beliefs upheldby people like politicians, judges and sometimes even the people, which restrainthe government from doing exactly what it pleases. Traditional examples would bethe rule of law and the separation of powers. More modern equivalents would beconstitutionalism and legitimacy. The problem with beliefs is that it is hard to pin downexactly what they are. Each person has their own ideas.

We hope that the questions and suggested answers in this chapter will help you to abetter understanding of these issues.

Question 1

In so far as Diceys general statement of the rule of law may be taken to involve the existence in theEnglish constitution of certain principles almost amounting to fundamental laws, his doctrine islogically inconsistent with the legislative supremacy of Parliament.

O. Hood Phillips, Constitutional and Administrative Law , 1987 .

Discuss.

Commentary Students often dislike answering questions on the rule of law because it seems too vague.Lots of different ideas and theories are identied as the rule of law, which is what causes

8/12/2019 Kay Chap02

3/18

R. Clements and J. Kay chap02.tex V1 - November 4, 2006 3:21pm Page 66 The Nature and Sources of Constitutional Law

the confusion. The student must be familiar with at least some of these theories, be able tocriticise them and compare them. A good starting point is Diceys version of the rule of law.It should be mentioned in any question on the rule of law even if, unlike in our question, it isnot specically mentioned. Students should also be able to discuss at least one other theory

of the rule of law.

Answer plan

The law must authorise all government action.

Equality before the law.

The common law protects individual liberty.

The supremacy of Parliament.

The judiciary and the executive. The Human Rights Act 1998 .

Suggested answer

The idea of the rule of law was not invented by Dicey, but he popularised it in the latenineteenth century. His book, Introduction to the Study of the Law of the Constitution(1885) can be seen as a strong defence of the English constitution when compared withthe constitutions of other countries, particularly those with written constitutions. DeSmith states that, His ideas . . .were very inuential for two generations; today they nolonger warrant detailed analysis ( Constitutional and Administrative Law , 1998). It istrue that Diceys ideas went out of fashion for a time, but they have now come back intofavour, particularly with senior members of the judiciary. Indeed it is now specicallymentioned in sections of the Constitutional Reform Act 2005. So, once again, theyrequire detailed analysis.

It is often said that Britain has an unwritten constitution, meaning that it is not

contained in one document and much of it has no formal legal status. Dicey argued thatnot only did this not matter, but in fact it was a positive advantage. In Britain therewas a long tradition of respect for individual liberty and democracy. This tradition wasupheld in our constitutional arrangements. For short it could be called the rule of law.Dicey summarised it under three main principles.

His rst principle concerned the rule of law and discretionary powers. No personcould be punished or interfered with by the authorities unless the law authorised it. Putanother way, all government actions must be authorised by the law. This contrastedthe situation in England with a country where there were no rules. In the latter, the

government could do as it pleased and there would be no legal controls over its activities.Examples would be imprisonment when someone had broken no law, or the lack of any trial before punishment.

8/12/2019 Kay Chap02

4/18


Dicey also felt that governments should not possess wide discretionary powers. Theclassic example of these ideas was Entick v Carrington (1765) 19 St Tr 1030 where thecourts declared that the Secretary of State could not order the search of Enticks house,

because there was no law that authorised such searches. The court would not acceptarguments of state necessity or that there was one law for government activities andanother for ordinary people.

Diceys second principle has the resounding title of equality before the law. Thisheld that the government and its ofcials should not have any special exemptions orprotections from the law. He did not like the French system where government activitieswere dealt with by separate administrative courts. These he considered to be too partialto the government and inferior to ordinary courts of law.

The nal principle concerns individual rights. The English constitution respectspersonal liberty. There is no need for a Bill of Rights because civil liberties are respectedanyway. The courts protect them in their decisions by developing the common law ina way that respects individual liberty. Parliament legislates on particular problems. Incontrast, Bills of Rights are documents which promise all sorts of rights. These promisesare so general and capable of so many meanings that they are meaningless. Again theBill of Rights might not be respected by the government and might be unenforceable.

Diceys theory is open to many objections. Some might say that these ideas are sovague and wide ranging that they have no real meaning. As de Smith states: The conceptis one of open texture; it lends itself to an extremely wide range of interpretations. Healso said: . . .everyone who tries to redene it begins with the assumption that it is agood thing, like justice or courage. Some might say that his theory is so obvious thatit is not worth stating it. Of course the government must obey the law and the courtsenforce it in a modern constitutional system. R. F. V. Heuston (The Rule of Lawfrom Essays in Constitutional Law , 1964) claims that Dicey misunderstood Frenchadministrative courts. They are not biased in favour of the government and they do atleast as well, if not better, in controlling the government as the English courts. Separatepublic law or constitutional courts are the normal arrangement in continental Europe.E. Barendt ([1985] Public Law 596) argues that Dicey also misunderstood the natureof written constitutions. Although in 1885 Bills of Rights might just have been piousdeclarations that no one could enforce, nowadays most countries that have them possesssophisticated enforcement mechanisms.

The main criticism of the rule of law is that it fails to deal with the supremacy of Parliament. If Parliament legislates in a way that is contrary to the rule of law, it isstill the law and there is nothing that the courts can do about it. Statutes can annulinconvenient court decisions. For instance, the War Damage Act 1965 reversed BurmahOil v Lord Advocate [1965] AC 75, where the House of Lords ordered the government

to pay compensation to Burmah Oil for the wartime destruction of its oil installations.Statutes also grant government ofcials some immunities from legal action, e.g., theCrown Proceedings Act 1947. Some Acts of Parliament grant the government wide

8/12/2019 Kay Chap02

5/18


and uncontrolled discretionary powers, e.g., the Deregulation and Contracting OutAct 1994. Dicey claimed that Parliament would protect our liberties and restrain thegovernment. Perhaps that was true in 1885, but nowadays the government of the day

controls Parliament through its majority and can nearly always get its own way.The key element of Diceys rule of law was that the government must possess clearly

dened legal powers to authorise its actions. Under the unwritten English constitutionit is in fact difcult to be precise about the legal powers that the government possesses.Prerogative powers still exist and it can be difcult to identify those powers accurately.For instance in R v Home Secretary ex parte Northumbria Police Authority [1988] 1 AllER 556 the court accepted the existence of a prerogative power, to maintain peace inthe realm, which had not previously been identied. Again much of the constitution isconvention, not law, for example, the powers of the Prime Minister. As they are not law,the courts cannot control these powers. Indeed there must be some doubts about whetherthe courts are always keen to ensure that the government keeps within its legal powers.In Malone v Metropolitan Police Commissioner [1979] Ch 344, Malones telephone hadbeen tapped by the police. He claimed that there was no law that authorised telephonetapping. These facts have strong similarities to the classic rule of law case, Entick vCarrington (1765). However, in Malone the judge came to the opposite conclusion. Nolaw forbade telephone tapping by the police, therefore it must be legal.

Despite these criticisms, the rule of law still has its defenders. T. R. S. Allan ([1985]Cambridge Law Journal 111) stressed that Parliament still has a controlling effect onthe government, particularly as it is elected by the people. The government does notalways get its way in Parliament and although Parliament can be persuaded to changethe law in a way favourable to the government, until that has happened the governmentmust obey the existing law. Judges will ensure that they do. Judges can also minimisethe effects of unjust laws by using techniques of statutory interpretation.

Perhaps Dicey never intended his rule of law as an accurate description of the EnglishConstitution. Perhaps he was just trying to say that this is the way it should be, not theway it actually was. These were the ideals that government, administrators and judgesshould endeavour to uphold.

Since the 1990, the rule of law has attracted the attention of many senior judges. InM v Home Ofce [1994] 1 AC 377 the House of Lords conrmed the rule of law inits basic meaning. The government must obey the law. It had no immunity from courtorders and government ministers were liable for contempt.

More signicantly the courts began showing a keen interest in the rule of law inits wider sense. In Bennett v Horseferry Road Magistrates [1993] 3 All ER 138, thedefendant had been illegally abducted from South Africa to stand trial in England.Despite the fact that no English laws had been broken, the House of Lords threw the

case out on the grounds that it would be an abuse of fair procedure to try Bennett. Thecourts would not turn a blind eye to the authorities involvement in law-breaking.Although Dicey disagreed with the idea of a Bill of Rights, the Human Rights Act

1998 has increased interest in the rule of law. That is because many human rights

8/12/2019 Kay Chap02

6/18


are similar to the values encouraged by the rule of law. Detention without trial wasdisapproved of by Dicey and was considered by the House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68 . This involved the detention, without

trial of foreign nationals who were suspected of terrorism. The House held that thiswas contrary to human rights on the narrow ground that this was unjustiable racialdiscrimination: UK nationals were just as likely to be suspected of terrorism. LordBingham quoted Professor Lauterpacht: The claim to equality before the law is in asubstantial sense the most fundamental of the rights of man.(at p. 113). Equality beforethe law was of course one of the main elements of Diceys theory. In the follow up case, A v Home Secretary (No 2) [2006] 1 All ER 575 the House of Lords rejected the useof evidence obtained by torture, not just because it was forbidden by various HumanRights Conventions, but because it was contrary to the common law traditions of thiscountry. That is just the sort of argument that Dicey would have used.

Despite the views of the senior judiciary the greatest problem with the rule of law,as dened by Dicey, is that it gives no protection if Parliament legislates in an unfairor unjust way. He would probably have said that it was most unlikely that Parliamentwould do this. Our legislators respect the rule of law and would rarely, if ever, enactlaws that contradicted basic standards of justice. The judges, with the aid of theEuropean Convention on Human Rights under the Human Rights Act 1998, will nowbe able to ensure that they do.

Question 2

Explain what is meant by the Separation of Powers. To what extent is it an important elementin the constitutional arrangements of this country?

Commentary

Questions on the separation of powers are somewhat easier to approach than questions onother constitutional theories like the rule of law. At least the separation of powers has aclearly dened meaning.

Our example is a pretty typical question on this subject. To answer the candidate mustbe able to explain the theory of the separation of powers and perhaps give an example of a constitution based on those principles, such as the USA or France. Then it is necessary toshow how the UKs constitution does not conform to the theory. The difculty in questions onseparation is in what the question asks you to do next. You might be asked to criticise the UKconstitution for its lack of separation. Alternatively, you might be asked to do the oppositeand argue that there is a type of separation of powers in the UK constitution.

8/12/2019 Kay Chap02

7/18


Our question is of the second kind. Students should, however, realise that the same basicmaterial can be deployed to answer either type of question.

Answer plan The Legislative or Law-Making function.

The Executive or Law-Applying function.

The Judicial or Law-Enforcing function.

The fusion of the legislative and executive functions in the UK.

The independence of the judiciary in the UK.

Suggested answer

The separation of powers is an ancient and very simple idea: that government powershould not all be concentrated in the hands of one person or body, otherwise tyrannyresults. Ancient Greeks, such as Aristotle in his Politics , rst propounded a versionof this theory, but the most famous version is that put forward by Montesquieu inThe Spirit of the Laws [1748] (eds A. Cohler, B. Miller and H. Stone, Cambridge,1989). He argued that there were three functions of government. The Legislative, orLaw-Making function, which is the enactment of rules for the society. The Executive, orLaw-Applying function, which covers actions taken to maintain or implement the law,defend the State, conduct external affairs and administer internal policies. Finally camethe Judicial, or Law-Enforcing function, which is the determining of civil disputes andthe punishing of criminals by deciding issues of fact and applying the law. His view wasthat There would be an end to everything, if the same man, or the same body . . . wereto exercise those three powers . . . . This can be interpreted in several ways, but the mostlikely is that he meant that the three functions of government should be carried out byseparate persons or bodies and that each branch of government should only carry out

its own function. For instance, the legislature should not judge, nor should the executivemake laws. The legislature, executive and judicial branches should have equal status soeach could control the excessive use of power by another branch.

These theories were adopted and developed by James Madison and incorporated intothe Constitution of the USA in 1787, which still remains a classic example of an attemptto implement the separation of powers. Article I declares that All legislative powerherein granted shall be vested in a Congress of the United States . . . Article II that Theexecutive power shall be invested in a President of the United States and Article IIIthat The judicial power of the United States shall be invested in one Supreme Court

and inferior courts as the Congress may from time to time ordain and establish. ThePresident is not a member of Congress and elections for the President and for Congressare separate. There is also an elaborate system of checks and balances between the threebranches of government. For example, under Article I, Section 7, the President can, in

8/12/2019 Kay Chap02

8/18


effect; veto legislation passed by the Congress, if at least one-third of either House of Congress agrees with him. The Supreme Court has the power to declare the acts of boththe President or Congress unconstitutional and illegal, but this power is not found in

the written constitution, but rather case law: Marbury v Madison 1803 1 Cranch. 137.The constitution of the UK is nothing like this, in that there is no written constitutional

document and no formal separation of powers. Historically, the King and his CuriaRegis were all three branches of government. Even today, the Queen still appoints allgovernment ministers or members of the executive and all the members of the judiciaryfrom the County Court upwards. The Queen formally summons parliament and shemust give the Royal Assent to all Parliamentary Bills before they become law. Theexecutive is part of the legislature, in that government ministers are always a memberof one of the Houses of Parliament, and even the senior judges, or Law Lords, aremembers of the legislature as they sit in the House of Lords. The Lord Chancellor is amember of all three branches of government, as he is the senior judge and head of thejudiciary, a government minister and member of the Cabinet and the chair of the Houseof Lords, when it sits as a legislature.

This has lead many constitutional commentators to dismiss the relevance of thetheory of the separation of powers to the UK constitution. Instead they concentratedon the checks and balances found in the UK, such as ministerial accountability toParliament and the independence of the judiciary. More recently, some writers, such asMunro ( Studies in Constitutional Law 2nd edn (London: Butterworths, 1999)), havetried to re-interpret these checks and balances as a British version of the separation of powers. Many senior judges have echoed this, as we shall see.

It is argued that although all members of the executive, government ministers, arealso members of the legislature, these two groups are not identical. There are justover a hundred government ministers, but they are greatly outnumbered by ordinarymembers of the legislature amongst the 646 MPs and 753 or so Lords. The executivedoes not have complete control over the legislature, as even MPs of the governing partydo not always do as they are told. The legislature can also hold the executive to accountby means of debate, oral and written questions and the system of select committees.

The personnel of the legislature and the judiciary are also separate, for under Schedule1 of the House of Commons Disqualication Act 1975, judges cannot be members of theHouse of Commons. The Lords of Appeal in Ordinary, Law Lords sit in the legislatureas members of the House of Lords, but by convention, they do not participate in partypolitical disputes. The legislature cannot tell the judiciary how to decide a case and, inorder to protect their independence, it is extremely hard for the legislature to dismissa judge from ofce. (Under s. 133) of the Contstitutional Reform Act 2005, judges of the Supreme Court and above hold ofce during good behaviour, but may be removed,

on an address by both Houses of Parliament.) The courts accept the supremacy of Parliament, that Parliament can make any law that it wants, but insist that they havethe right to interpret its meaning. As Lord Diplock put it in Duport Steel v Sirs [1980] 1ALL ER 529 at 541, it cannot be too strongly emphasised that the British constitution,

8/12/2019 Kay Chap02

9/18


though largely unwritten, is rmly based on the separation of powers: Parliament makesthe laws, the judiciary interprets them.

Judges do not form part of the executive. They are chosen by the executive, in the

shape of the Prime Minister and Lord Chancellor, but by convention, they are notchosen on the basis of party political allegiance. As we saw above, the executive cannotdismiss judges from ofce if they do not like their decisions. The courts will decideagainst the executive, in the shape of government ministers, if they exceed their legalpowers, as seen in M v Home Ofce [1992] QB 270 where the House of Lords foundthe Home Secretary in contempt of court for disobeying a court order. The modernjudiciary seem to be strong upholders of the separation of powers as can be seen in R.v Secretary of State for the Home Department, ex parte Fire Brigades Unions [1995] 2AC 513, where the Lords refused to allow the executive to ignore the legislative will of Parliament. As Lord Mustill put it:

It is a feature of the peculiarly British conception of the separation of powers thatParliament, the executive and the courts have each their distinct and largely exclusivedomain. Parliament has a largely unchallengeable right to make whatever laws it thinksright. The executive carries on the administration of the country in accordance with thepowers conferred on it by law. The courts interpret the laws and see that they are obeyed.(Fire Brigades Unions , at 567).

Despite these arguments that there is a form of the separation of powers operatingin the UK constitution, it has to be reiterated that this is not a formal separation assuggested by Montesquieu or found in the USA. Since the Human Rights Act 1998 cameinto force in 2000, this has caused problems. Article 6 of the European Convention forthe Protection of Human Rights guarantees the right to a fair trial and this includesa hearing by an independent and impartial tribunal established by law. This led theHouse of Lords to rule in R (Anderson) v Secretary of State for the Home Department [2002] 4 All ER 1089, that the Home Secretary should not play a part in the xing of the sentence of a murderer, as the Home Secretary was a member of the executive, notthe judiciary. As Lord Steyn put it, Article 6(1) requires effective separation betweenthe courts and the executive, and further requires that what can, in shorthand, be calledjudicial functions may only be discharged by the courts . . . (at 1106).

Until the passing of the Constitutional Reform Act 2005, the Lord Chancellor wasan example of how the UK Constitution was not based on a separation of powers, buta fusion of powers. He was the leading judge and head of the judiciary, speaker of the House of Lords as a legislature and a member of the Cabinet and therefore of theexecutive as well. It was decided to change this, partly to modernise the constitution andpartly to guarantee judicial independence as required by the European Convention onHuman Rights. For example, in McGonnell v UK (2000) 30 EHRR 289, the EuropeanCourt of Human Rights objected to the Deputy Bailiff of Guernsey granting planningpermission as a member of the legislature and then hearing the subsequent appeal. Underthe 2005 Act the Lord Chancellor ceases to be a judge and, instead, the Lord Chief

8/12/2019 Kay Chap02

10/18


Justice becomes the head of the judiciary. The Lord Chancellor remains a governmentminister, but also holds the position of Secretary of State for Constitutional Affairs.He/she will no longer needs to be a Lord and will not necessarily have to have a legal

qualication. The House of Lords now elects its own Lord Speaker, starting with LadySpeaker Hayman.

To ensure the separation of powers, the House of Lords will cease to act as a courtand a separate Supreme Court will be established. Judges are currently selected by theLord Chancellor, with the involvement of the Prime Minister for the highest ranks. Theexecutive appointing the judiciary conicts with ideas about the separation of powersand possibly the European Convention on Human Rights: Starrs v Ruxton 2000 JC208 . Under the Constitutional Reform Act, new judges will be selected by a JudicialAppointments Commission. The Lord Chancellor will only be able to appoint judgesrecommended by this Commission, although he does not have to accept their rst choice.This lessens executive control of the judiciary and section 3 of the Act contains the rststatutory guarantee of judicial independence. The Lord Chancellor and other Ministersof the Crown must uphold the continued independence of the judiciary and must notseek to inuence particular judicial decisions through any special access to the judiciary.

So it can be seen that the UK is becoming more concerned about the lack of aformal separation of powers in its constitution and is trying to do more to ensure theindependence of the judiciary. A full separation of powers looks unlikely, however, asthis would require the legislature to be separate from the executive, which would meana totally different way of electing a government and selecting a Prime Minister. I do notthink that anyone is quite ready for that.

Question 3

The main purpose of constitutional conventions is to ensure that the legal framework of theConstitution will be operated in accordance with the prevailing constitutional values or principles of the period.

Re Amendment of the Constitution of Canada [1982 ] 125 DLR ( 3 d)1 .

Discuss.

Commentary

Nineteenth century writers like A. V. Dicey and early twentieth century ones like Sir Ivor Jennings stressed the importance of conventions in the UK constitution. Probably they over-stressed their importance and constitutional writers looked for conventions which did notreally exist, e.g., in the area of ministerial responsibility. There was a reaction in the 1960 s

8/12/2019 Kay Chap02

11/18


and some writers asserted that there were no such things as conventions. Opinion has nowswung back again, as in Re Canada ( 1982 ). Conventions denitely exist and are important.Their limitations must be understood though. That is what the essay title is about. Other quotations could be used but all questions tend to call for the same basic response: what

are conventions, how do they differ from the law, how do they change and how can they beenforced? The student is usually expected to be critical and to give examples.

Answer plan

Habits or practices that regulate the conduct of the government.

Conventions are not legally enforceable.

Conventions are enforced by peer pressure, public opinion or personal morality.

Conventions evolve over time.

Suggested answer

In all constitutions, even those that are written, like that of Canada, various practicesor ways of doing things that are not strictly provided for in the constitution growup over the years. These practices can harden and become the accepted way of doingthings. Then they can be called conventions. In Re Canada (1982), although the written

Canadian constitution did not require it, it was the convention that the consent of theCanadian provinces had to be obtained before changes were made to the constitution.In the UK, a country without a written constitution, conventions are particularlyimportant.

In the late nineteenth century the famous constitutional writer, A. V. Dicey, drewattention to the role of conventions in the UK. He believed that most of the UKconstitution and many of its most important parts consisted of conventions. This didnot mean that there were no rules, merely that a lot of the rules were not legal ones. Ashe put it in, Introduction to the Study of the Law of the Constitution , 1885:

The other set of rules consist of conventions, understandings, habits or practices which,though they may regulate the conduct of several members of the sovereign power, of theMinisters, or of other ofcials, are not in reality laws at all since they are not enforced bythe courts. This portion of constitutional law may, for the sake of distinction, be termedthe conventions of the constitution, or constitutional morality.

If we only look at the legal rules of the constitution we gain a seriously misleadingimpression. Legally, the Queen may refuse the Royal Assent to a parliamentary Bill. Byconvention she always agrees, taking the advice of Her Majestys government. Legally,the Queen chooses the Prime Minister, but by convention it is always the person whocan command a majority in the House of Commons. Legally the Queen chooses herown ministers, but by convention they are chosen by the Prime Minister.

8/12/2019 Kay Chap02

12/18


Conventions are clearly not the law because, as in the above examples, they sometimescontradict the strict legal position. The courts take judicial notice of the existence of conventions and sometimes they can even inuence their decisions, but the courts cannot

enforce conventions because they are not law. In Attorney-General v Jonathan Cape[1976] QB 752 there is an interesting discussion of the various conventions relating toCabinet secrecy, but the court cannot enforce them, only the law, which was breach of condence in that case. In Madzimbamuto v Lardner-Burke [1969] AC 645 the courtobserved that there was a convention that the UK would not legislate for Rhodesiawithout that colonys consent. This could not stop the UK Parliament from legislatingin breach of the convention if it chose.

There are many examples of convention. It is probably impossible to make a completelist. The ofce of Prime Minister and the existence of the Cabinet are conventionalonly. Ministers are accountable to Parliament and responsible for the actions of theircivil servants. There are detailed rules governing things like gifts to ministers and theirnancial interests, which have been written down in a booklet, The Ministerial Code .Parliament meets every year, but the Bill of Rights 1689 only says that it should meetfrequently.

The problem with all these conventions is that it is hard to decide which ones denitelyexist and which are just everyday politics. Sir Ivor Jennings recommended a three stagetest in, The Law and the Constitution , 1959. First, we must look for the precedents;how often and how consistently has this practice been observed before? Secondly, didthe actors in the precedent believe that they were bound by the rule? In other words,did they believe that they had some sort of obligation to follow the precedent? Thirdly,there must be a reason for the rule. In other words, the convention must t in with ourgeneral ideas of the constitution like democracy, accountability etc. This test works wellwith some of the major conventions. We know that the Queen always gives the RoyalAssent because there are thousands of examples of her doing so. A Monarch has notrefused since 1708 to give the Royal Assent. It seems clear that she feels that she hasno choice in the matter. The reason is that a hereditary Monarch should abide by thewishes of the democratic government. With other proposed conventions such as whena minister should resign this test does not work so well. This gives rise to many doubtsabout conventions generally.

Conventions are continually changing. Up until 1902 a Prime Minister could comefrom the House of Lords. Since then they have always come from the Commons. Upuntil 1992 a new Speaker came from the governing party. In that year the LabourOppositions Betty Boothroyd was elected, but in 2000 Michael Martin was electedSpeaker. He was from the Labour party who formed the government, but he was notthe governments choice. It is hard to see that there is any convention here. This

evolution of convention leads to uncertainty. Although we can say what happenedlast time a situation occurred, we cannot be absolutely certain that the precedentwill be followed next time. As an editorial in Public Law in 1963, pp. 4012, putit: so let us delete those pages in constitutional text books headed conventions,

8/12/2019 Kay Chap02

13/18


and talk about what happens and why what happened yesterday may not happentomorrow.

Conventions are called rules but they do not look much like rules. They are often

vague and imprecise. No body deliberately creates them, unlike an Act of Parliament. Itis not necessary for a court to rule upon whether they exist or not. In many cases, despitethe efforts of writers like Jennings, it is hard to say whether a convention exists or not.

A major problem with convention is that there seems to be no sanction if aconvention is broken. If they are rules of a constitution it seems strange that there canbe no enforcement. A government minister might lie to Parliament, in clear breach of convention, but it does not necessarily mean that he has to resign. The major apologistsfor conventions had their solutions. Dicey states that if a convention was broken legalproblems would eventually arise. His example was that if Parliament did not meetevery year the Budget could not be authorised nor could a standing army, both legalnecessities. It is hard to see how this could apply to some conventions like, for instance,ministerial responsibility. Jennings believed that conventions had to be obeyed becausethe system would break down if it did not, political difculties would occur. If the Queen refused her Assent there would be a crisis as indeed there would if thePrime Minister tried to govern without a majority. Again this can only apply to someconventions. When Mrs Thatcher refused opposition nominations for life peerageshardly anyone noticed.

Re Canada (1982) considered the sanctions available. In extreme cases of unconven-tional behaviour a constitutional superior can dismiss the guilty person. In 1975 thePrime Minister of Australia was dismissed by the Governor-General for trying to governwithout an approved Budget. Prime Ministers frequently dismiss erring ministers. Thereal enforcement though is reected in the quotation in the question. Conventionsmerely reect the prevailing constitutional values or principles of the period. Thisrecognises that conventions are constantly changing. It is now unacceptable to us forthe Queen to actively rule the country or an unelected lord to lead the government. Italso means that constitutional rules are not like legal rules. As Dicey suggested yearsago they are more like moral rules. People refrain from breaking constitutional rulesbecause they feel that it is wrong or they fear the disapproval of fellow politicians or thepublic. As with any moral rule, there are genuine disagreements as to what the rules areand some rules are considered more important than others. There are strong or norm-ative conventions such as those that surround the role of the Queen. These will seldomif ever be broken. In contrast there are weak or simple conventions, such as that judgesmust abstain from party politics, more honoured in the breach than the observance.

The UK system, which is based on conventions, can accommodate enormous consti-tutional change without the need for a revolution or new constitution. The Queen no

longer governs, we have party politics, the Lords now has little power, are just someexamples. The weakness is that the evolution of the constitution cannot be halted andgovernment may be tempted by the lack of legal restraint to take more power for itself.For example, local government was considered a counterbalance to central government

8/12/2019 Kay Chap02

14/18


but since the Second World War central government has removed most of its powers.This may or may not be unconventional but it is not illegal.

Question 4

A written constitution would make a great improvement to the British system of government.Discuss.

Commentary

A Constitutional Law course will often start with a consideration of what a constitutionactually is and part of this is a comparison between written and unwritten constitutions.Many students will be hoping for a question like this to turn up in an examination, but itis not quite as straightforward as it seems to write a good answer to a question like this.Students, who are at this stage usually quite new to law, do not really understand whata constitution is. What sort of things does a constitution contain and what is it designed

to achieve? The phrase written constitution also causes confusion. A written constitutionneed not be contained in one document and the constitution could be a few pages long or hundreds of pages long. Even unwritten constitutions are written down somewhere, sowhat written really refers to in this context is the special legal status of the constitution.

The question clearly states that a written constitution would be better for Britain, but thestudent does not have to agree with this. There is no right answer to this kind of question,so what the student needs to do is to clearly state the arguments for and against a writtenconstitution and come to a conclusion supported with reasons. There must be examples andsome of them must come from Britain. As usual in Constitutional Law it helps if the examples

are up to date, so the student can show that they keep up with the subject.

Answer plan

A constitution limits the power of government.

Written constitutions are adopted upon independence or revolution.

Written constitutions have the status of higher law.

Written constitutions may have a special amendment procedure.

Written constitutions may contain a bill of rights. The UK constitution is formed from statutes, cases and conventions.

An unwritten constitution is exible.

A written constitution cannot contain everything.

8/12/2019 Kay Chap02

15/18


Suggested answer

Every organised State has a constitution, but it does not necessarily have to be a written

one. Even clubs and societies have a constitution, as there have to be some rules andthe members need to know who has the power to take decisions or take actions. Sowhat is the purpose of a constitution? A constitution is there to limit the power of those who govern and if necessary protect the individual citizen from them. It is thereto ensure that those who run the State do not behave in an arbitrary manner. Theymust act according to the rules and procedures and not just persecute a citizen for nogood reason. For example, a government ofcial could not just say to someone I do notlike you, you cannot live in this country. Instead there must be laws about nationality,immigration and the right to a fair trial. A constitution provides for these things, but justas importantly it would also state who has the power to do what. Who can make laws,is there a Head of State, is there a Prime Minister and who has the real power to decide?

Nearly every country in the world, apart from the United Kingdom, New Zealand andIsrael, has a written constitution. The idea of having a special constitutional documentcame into vogue at the end of the eighteenth century with the United States of Americaobtaining its independence from Britain and the French Revolution overthrowing therule of King Louis XVI. Generally countries adopt a written constitution when thereis a dramatic break with the past and there is a need to make a fresh start with anew system of government. Gaining independence and revolution, as with the USA andFrance above are often the occasions to adopt a constitution, as is recovery after a war,such as France in 1946. England was in fact one of the rst countries to have a writtenconstitution with Oliver Cromwells Instrument of Government in 1653, after he hadoverthrown and executed Charles I. It only lasted, however, until 1660, when the oldsystem of royal government was restored. Since then the British system of governmenthas changed out of all recognition, but it has changed gradually and there has neverbeen such a drastic break with the past that either politicians or the people have wanteda written constitution.

Every country has a different constitution and this also applies to the written variety,so it is only possible to give some examples of what might be in such a constitution.Some might be quite short, like that of the USA and just state the general principles,while others, like that of India, might be extremely long and go into great detail.Most written constitutions have superior status to the ordinary law and therefore manycountries, particularly in Europe, make a big distinction between Constitutional Law,known as Public Law and Private Law. Many countries have specialist courts to dealwith Public Law issues, separate to the private law courts. This system is not knownin Britain, because without a written constitution, there is not a clear-cut distinction

between Public Law and Private Law.Many written constitutions have a clear statement of the values of that country. Forinstance the constitution of the USA starts with the words We the People of the UnitedStates . . . and, among other things proclaims the Blessings of Liberty. The United

8/12/2019 Kay Chap02

16/18


Kingdom has no such statement so we have to rely on writers like the nineteenth-centuryDicey, for statements of constitutional values.

A written constitution would often lay down a special procedure under which the

constitution can be changed. For example, Article V of the US Constitution stipulatesthat two-thirds of both Houses of the Congress or two-thirds of the legislatures of the States can propose amendments to the Constitution. This has to be ratied by thelegislatures of three-quarters of the States. In the Republic of Ireland, a Bill passed byboth Houses of Parliament, a majority of the votes in a referendum and the assent of thePresident amends the Constitution. In contrast, there is no special procedure to changeany part of the UK constitution.

Written constitutions will often detail the federal structure of a country, outlining thepowers of each State or province and the powers of the central or federal government.The unication of once independent countries to form a federal state is often thereason for adopting a written constitution and occurred in the United States of America,Canada, Australia, Nigeria, Malaysia and Germany, to give just a few examples. TheUnited Kingdom, as the name suggests, is a union of once separate countries, but it isnot federal. Instead, the Parliament of the UK, which sits at Westminster, retains fulllegislative supremacy. It has recently granted considerable self-government to Scotland,in the Scotland Act 1998, to Northern Ireland in the Northern Ireland Act 1998 andsome powers of self-government to Wales in the Government of Wales Act of thesame year. The UK Parliament can, however, just as easily repeal those Acts andregain full powers to govern Scotland, Northern Ireland and Wales. There is no writtenconstitution to stop the sovereign Parliament of the UK doing this.

Many written constitutions contain a list of Rights, to which the citizen is entitled.Often, as in the USA and Germany, they are constitutionally protected and cannoteasily be taken away, by the executive or legislature. The UK has a Bill of Rights from1689, but that was more designed to reduce the power of the King rather than to grantindividual rights. We now have the Human Rights Act 1998, which gives the EuropeanConvention on Human Rights some effect in UK law. Section 3 of this Act, however,carefully preserves the supremacy of Parliament. UK courts cannot strike down primarylegislation, which is incompatible with human rights, and Act of Parliament can stillrestrict human rights.

Most written constitutions would contain some sort of organisation chart of government and would explain whether there was a President or Prime Minister, orboth, and what their powers were, who had the power to legislate, who appoints thejudges, etc. There is no equivalent in the UK, as the system of government has justevolved over the centuries. The Head of State is the Queen, which is a matter of ancientcommon law, and there is no law that says that there has to be a Prime Minister. The

existence of a Prime Minister is just a matter of convention or non-legal custom.In fact the UK Constitution can be found in a number of sources. Acts of Parliamentare important and many are of constitutional signicance such as the Act of Settlement1700 and the European Communities Act 1972. As we have seen above, more and

8/12/2019 Kay Chap02

17/18


more of the UK Constitution is being incorporated into Acts of Parliament. These canbe very important changes, for example the Scotland Act 1998 restored a Parliament toScotland, the Human Rights Act 1998 makes human rights directly enforceable in UK

courts for the rst time and the House of Lords Act 1999 abolished the right of mosthereditary peers to sit in the House of Lords. This indicates that nothing is permanentin the UK Constitution, everything can change. Cases can also be important sourcesof the constitution. For example, the House of Lords reafrmed the principle of thesupremacy of Parliament in Pickin v BRB [1974] AC 765, but a few years later had tomoderate it to take account of membership of the European Community in Factortame(No. 2) [1991] 1 AC 603. Unlike many of the countries with a written constitution,the UK does not have a Supreme or Constitutional Court that rules on constitutionalissues. All legal cases, constitutional or not, go to the same court system.

Historic documents, such as the Magna Carta (1215) and the Bill of Rights (1689)are important for establishing constitutional principles, such as the idea that the King orExecutive does not have unlimited power, but these documents do not have the special,formal legal status of a written constitution.

A lot of the UK Constitution is not legal at all and consists of constitutionalconventions, which were dened by Dicey in his The Law of the Constitution as:conventions, understandings, habits or practices which, although they may regulatethe conduct of the several members of the sovereign power . . . are not in reality laws atall since they are not enforced by the courts. (p. 24 10th edn 1959). Much of the mostimportant parts of the constitution can be found in convention, such as the existence of the Prime Minister, the Cabinet, ministerial responsibility, accountability to parliamentand how the considerable legal powers of the Queen are exercised by ministers inher name. Constitutional conventions are not legally enforceable ( Attorney-General v Jonathan Cape Ltd. [1976] QB 752) and are constantly changing. For example, in June2003, the Prime Minister abolished the Lord Chancellors Department, as part of aministerial reshufe and replaced it with the Department of Constitutional Affairs.

This is supposed to be the major advantage of an unwritten constitution, its exibilityand its ability to change. By contrast, as we have seen, it can be difcult to change awritten constitution. On the other hand, if everything can change, as it can with theUK constitution, it can lead to a lot of confusion and both members of the governmentand the ordinary citizen can be uncertain what is the true constitutional position. Somethink that Prime Ministers and the governments that they lead have too much powerand can take away any right by just using Parliament to pass an Act or by merelychanging a convention. However, even in countries with written constitutions, thatdocument is unlikely to reveal the full constitutional position. For instance in the USA,the Supreme Court has the power to strike down legislation which is incompatible with

the constitution. That power is not found in the constitution, but in a case: Marburyv Madison 1803 1 Cranch. 137. Under Article II of the US Constitution, the Presidentneeds the consent of the Senate to agree treaties, but a practice has grown up of makingExecutive Agreements with other countries, which does not require Senate approval.

8/12/2019 Kay Chap02

18/18


The difference between a written and unwritten constitution is not as great as somesuppose, because it is not possible to write down everything in a document that willbe valid for all time. Much of the UK constitution is in Act of Parliament anyway and

that is increasingly the position today, as this essay has tried to show. Every countryhas different constitutional arrangements and those of the UK just reect its individualhistory of being one of the oldest unied States in the world.

Further reading

Barnett, H. Constitutional and Administrative Law , 6th edn (Cavendish, 2006), chs 1,2, 4 and 5.

Bradley, A. and Ewing, K. Constitutional & Administrative Law , 14th edn (Longman,2006), chs 1, 2, 5 and 6.

Loveland, I. Constitutional Law, Administrative Law and Human Rights , 4th edn(OUP, 2006), ch. 1, 3 and 9.

Munro, C. Studies in Constitutional Law , 2nd edn (OUP, 1999), chs 1, 3 and 9.

Documents

Kay Chap02