NATURE AND SOURCES OF THE CONSTITUION:

Anthony King, The British Constitution (2007), Chapter 1 (‘What is a Constitution?’)

• Definition of a Constitution:

o King's Definition: A set of the most important rules and common understandings that
regulate relations among governing institutions and between governing institutions and
the people of a country.

F.F. Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’ (1988)

• Ridley's Argument:

o There are essential characteristics for a constitution, and the UK lacks all of them.

o Essential Characteristics:

1. Precedence: Constitution must be prior to the system of government, not part

of it.

2. Constituent Power: Authority outside and above the order it establishes,

generally the people in a democracy.

3. Superior Law: A form of law superior to other laws because it originates from a
higher authority than the legislature and binds the legislature.

4. Entrenchment: Can only be changed by special procedures involving reference

back to the constituent power.

1. THE NATURE AND PURPOSE OF CONSTITUTIONS: AN OVERVIEW

What is a Constitution?

• Thomas Paine, The Rights of Man (1790):

o Quote: ‘…a constitution is a thing antecedent to a government; and a government is only

a creature of a constitution’.

• Anthony King, The British Constitution (2007):

o Quote: ‘[A constitution is] the set of the most important rules and common
understandings in any given country that regulate the relations among that country’s
governing institutions and also the relations between the country’s governing institutions
and the people of that country’.

• FF Ridley, ‘There is no British Constitution’ (1988):

o Quote: ‘a special form of law embodied as a matter of convenience in a single

document’.

• JAG Gri\ith, ‘The Political Constitution’ (1979):

o Quote: ‘the constitution is no more and no less than what happens. Everything that
happens is constitutional. And if nothing happened that would be constitutional also’.

What Do Constitutions Do?

• Three Key Functions:

 1. Establishing Structures of Government.

2. Setting Out Powers: The government can exercise.

3. Defining the Relationship: Between the individual and the state.

• Thomas Paine, The Rights of Man (1790):

o Quote: ‘A constitution is not the act of a government, but of a people constituting a

government, a government without a constitution is power without right.’

• SE Finer, V Bogdanor, B Rudden, Comparing Constitutions (1995):

o Quote: ‘[Constitutions are] codes of norms which aspire to regulate the allocation of
powers, functions, and duties among the various agencies and oMicers of government,
and to define the relationship between these and the public’.

• A Tomkins, Our Republican Constitution (2005):

o Quote: ‘[The purpose of a constitution is] to check the government.’

Establishing Institutions and Allocating/Limiting Power

• Allocation of Power Between National Institutions:

o Legislative Power: Make and pass laws.

o Executive Power: Run the country, enforce laws.

o Judicial Power: Interpret and apply laws.

o Separation of Powers: Key concept in constitutional law and theory.

o UK Context:

§ Case Law: In re M [1993] 3 WLR 433:

§ Quote: ‘… Parliament makes the law, the executive carry the law into
eMect and the judiciary enforce the law’.

• Allocation of Power Between National and Sub-national Institutions:

o Federal states divide powers between central and regional governments.

o Examples: US, Canada, Germany.

Defining Fundamental Rights/Relationship Between Individual and State

• Protection of Citizens Against the State:

o Define fundamental individual rights.

o Methods of protection: Bills of Rights.

o Examples: US Constitution’s First, Fifth, and Sixth Amendments.

o UK Equivalent: Human Rights Act 1998.

2. CODIFIED OR UN-CODIFIED?

Key Characteristics of Constitutions

 • Precedence: Constitution usually takes precedence over other legal rules.

• Entrenchment: Protected from amendment by ordinary legislative process.

• Codification: Key constitutional rules in a single document.

• Constitutional Review: Supreme or Constitutional Court ensures compliance with the

Constitution.

Codified Constitutions

• Anthony King: 'Capital C Constitutions'.

• Examples of countries with codified constitutions: Most of the world’s constitutions.

• Uncodified Constitutions: Examples include Israel, New Zealand, and the UK.

o King's Description: 'Small c constitutions'.

Distinction Between Codified and Uncodified Constitutions

• Factors Influencing Length of Constitutions:

o Complexity of structures (e.g., federal states).

o Substantive goals of society.

o Historical origins and goals of constitution-makers.

• Variability:

o Constitutions vary in detail and length.

o Anthony King:

§ Quote: ‘The truth is that constitutions, as we are using the term here, are never –
repeat, never – written down in their entirety’.

o Adam Tomkins, Public Law (2003):

§ Quote: ‘… even a cursory glance at the American constitutional text suMices to

illustrate that notwithstanding its almost sacred status in the USA it does not
contain a complete code of all America’s constitutional rules, nor even of all the
important ones.’

Flexibility and Inflexibility in Written Constitutions

• Amendments and Flexibility:

o US Constitution: Amendments require ratification by special majorities.

o German Constitution: Some features entrenched, others can be changed by ordinary

legislative procedure.

o Irish Constitution: Amendments require a referendum.

o Canada’s Charter of Rights (1982):

§ Allows violations of rights if consistent with democratic principles (Section 1).

 § Legislature can depart from rights (Notwithstanding Clause).

3. DOES THE UNITED KINGDOM HAVE A CONSTITUTION?

Ridley’s Argument Against a UK Constitution

• Characteristics:

1. Precedence: Constitution must be prior to the system of government.

2. Constituent Power: Authority outside and above the order it establishes.

3. Superior Law: Originates from a higher authority, binding the legislature.

4. Entrenchment: Changed only by special procedures.

• Application to the UK:

o UK lacks these characteristics due to parliamentary sovereignty.

o Parliament is the ultimate authority and can change any law by simple majority.

Alternative Views

• Anthony King:

o Quote: ‘…almost every country has a constitution, and to say that a given country has a
constitution is to say nothing else about that country save possibly that it is not a so-
called “failed state”, a state whose governmental structures have eMectively collapsed.’

• House of Lords Select Committee on the Constitution (2001):

o Quote: ‘… 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 diMerent institutions and between those
institutions and the individual.’

• R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin):

o Quote: ‘The United Kingdom does not have a constitution to be found entirely in a written
document. This does not mean that there is an absence of a constitution or
constitutional law. On the contrary, the United Kingdom has its own form of
constitutional law, as recognised in each of the jurisdictions of the four constituent
nations. Some of it is written, in the form of statutes which have particular constitutional
importance … Some of it is reflected in fundamental rules of law written by both
Parliament and the courts. There are established and well-recognised legal rules which
govern the exercise of public power and which distribute decision-making authority
between diMerent entities in the state and define the extent of their respective powers.
The United Kingdom is a constitutional democracy framed by legal rules and subject to
the rule of law.’

The Constitution as a Map of the State

Overview:
 • A constitution acts as a 'map' of the state, outlining the distribution and limitations of
governmental power.

• Establishes key state institutions, their powers, constitutions, and interrelations.

• A written constitution provides explicit rules, whereas an unwritten constitution relies on various
sources.

Division of Governmental Power:

• Functional Division: Powers are divided based on types of governmental tasks (legislative,
executive, judicial).

• Territorial Division: Powers are divided geographically (national, regional, local).

Functional Divisions of Power

Key Types of Power:

1. Legislative Power: Authority to make laws.

2. Executive Power: Authority to implement and enforce laws and policies.

3. Judicial Power: Authority to interpret laws and resolve disputes.

Separation of Powers:

• Fundamental principle in Western constitutionalism.

• In the UK, there is no perfect adherence to the separation of powers, but distinct legislative,
executive, and judicial bodies exist.

Territorial Divisions of Power

Sub-State National Governance:

• The UK comprises England, Scotland, Wales, and Northern Ireland, each with historical
distinctiveness.

• Devolution since 1998/99 has enhanced the autonomy of Scotland, Wales, and Northern Ireland.

Local Governance:

• Local authorities manage regional functions within each UK territory.

Supra-National Governance:

• Post-Brexit, most functions returned to the UK, though EU laws still aMect Northern Ireland.

• The European Court of Human Rights remains relevant.

Complexity:

• The UK's territorial divisions are asymmetric, with separate legal systems and varied local
governance structures.

Legislative Institutions

UK Parliament:
 • Bicameral Structure: Comprises the House of Commons and the House of Lords.

• Crown in Parliament: Legislative authority technically rests with the Crown, House of Commons,
and House of Lords.

House of Commons:

• Composition: 650 elected MPs, represents geographical constituencies.

• Functions:

o Maintains government through elections.

o Authorizes taxation and expenditure.

o Scrutinizes government policies and administration (e.g., Miller (2019) case on executive
accountability).

o Debates public issues.

o Represents and addresses constituent grievances.

House of Lords:

• Composition: Mostly life peers, 92 hereditary peers, and bishops.

• Functions:

o Scrutinizes and revises Bills, limited by the Parliament Acts and the Salisbury
Convention.

o Supplies some government ministers.

o Focuses on technical scrutiny and debates.

The Crown:

• Functions:

o Summons, prorogues, and dissolves Parliament.

o State opening of Parliament.

o Grants Royal Assent to Bills.

o Requires Monarch’s consent for certain Bills aMecting Crown prerogatives.

Executive Institutions

UK Government:

• Headed by the Prime Minister, accountable to Parliament.

• Performs multiple functions, including implementing laws, administering public services,

formulating policies, raising public finance, allocating expenditure, and conducting international
relations.

Civil Service:

• Permanent oMicials serving government departments, expected to be impartial.

Quangos:

• Legally independent public bodies operating at arm's length from political control.

Controlling Executive Power

• Ensured through political (Parliamentary scrutiny), legal (judicial review), and financial (audits)
mechanisms.

Judicial Institutions

UK Legal Systems:

• Three separate systems: England and Wales, Scotland, Northern Ireland.

• The UK Supreme Court serves as the 'apex' court.

Judicial Independence:

• Judges appointed based on legal expertise and have security of tenure.

• Courts interpret and apply laws, and higher courts have a creative role in developing common
law and interpreting statutes.

Constitutional Role of the Courts

• Non-democratic nature raises questions about the role of judicial independence versus
accountability.

• Courts play a crucial role in upholding constitutional standards and holding executive bodies to
account.

Case Law:

R (Miller) v The Prime Minister [2019] UKSC 41:

• Context: Unlawful prorogation of Parliament by the government.

• Significance: Highlighted the accountability of the executive to Parliament and reinforced the
constitutional role of judicial review in maintaining the rule of law.

Conclusion:

• The UK constitution maps the distribution of governmental power both functionally and
territorially, with complexities arising from its evolutionary nature and the principle of
parliamentary sovereignty.

• EMective control and accountability mechanisms are essential to balance the extensive powers
of executive institutions and uphold democratic governance.
CONVENTIONS:

SOURCES OF THE UK CONSTITUTION: AN OVERVIEW

Finding the Constitution:

• Key Reference:

o AV Dicey: In "Introduction to the Study of the Law of the Constitution," states that there
is no single document constituting the UK Constitution.

• Consulting Multiple Sources:

o Requires examining legal and non-legal, domestic and international sources.

o Assess the constitutional significance of rules within these sources.

• Constitutionally Significant Rules and Principles:

o Statutes (Acts of Parliament)

o Common Law (Judicial Precedent)

o Royal Prerogative: Powers retained from the absolute monarchy era.

o Conventions: Non-legal rules guiding the conduct of state oMicials.

o European Union Law: Initially integrated through the European Communities Act 1972.

o European Convention on Human Rights: Incorporated via the Human Rights Act 1998.

Assessing Constitutional Significance:

• A King: Defines constitution as important rules and understandings regulating relationships

among governing institutions and between these institutions and the people.

• Influential Dicta of Laws LJ (Thoburn v Sunderland City Council):

o Hierarchy of Acts: Distinguishes between "ordinary" statutes and "constitutional"

statutes.

o Criteria for Constitutional Statutes:

§ Conditions legal relationship between citizen and state.

§ AMects fundamental constitutional rights.

DOMESTIC SOURCES OF 'CONSTITUTIONAL LAW' IN THE UK

(a) Statutes (Primary Legislation Passed by Parliament):

• Parliamentary Sovereignty: The highest form of law in the UK.

• Examples of Constitutional Legislation:

o Bill of Rights 1689: Asserts parliamentary supremacy.

o Parliament Acts 1911 and 1949: Define legislative powers of the House of Commons
and Lords.
 o Devolution Statutes: Establish and regulate devolved governments (e.g., Government
of Wales Act 1998).

o Rights Legislation:

§ Sex Discrimination Act 1975

§ Disability Discrimination Act 1995

§ Human Rights Act 1998

§ Equality Act 2010

o European Communities Act 1972: Initially provided for EU law’s enforceability (now
aMected by Brexit legislation).

(b) Judicial Precedent (Common Law):

• Common Law as a Source of Legal Rules:

o Important Cases:

§ Stockdale v Hansard (1839): Resolution of the House of Commons is not equal

to an Act of Parliament.

§ Entick v Carrington (1765): Executive power must have legal authority.

§ Madzimbamuto v Lardner-Burke (1969): Constitutional conventions are not

enforceable by courts.

• Common Law as a Source of Interpretative Principles:

o Interpretation of Acts of Parliament:

§ Fundamental Rights Protection: Parliament must clearly express any

restriction on fundamental rights (e.g., R v Lord Chancellor, ex parte Witham).

§ Lord Ho\mann’s Principle: Fundamental rights cannot be overridden by

ambiguous words (R v Secretary of State for the Home Department, ex parte
Simms).

(c) The Prerogative:

• Definition and Scope:

o AV Dicey: Prerogative is the residual power left to the Crown.

o Sir William Wade: It includes special powers unique to the Crown.

• Personal Prerogatives: Exercised by the Monarch (e.g., granting Royal Assent, appointing Prime
Minister).

• Ministerial Prerogatives:

o Foreign Policy: Treaties, recognizing states, declaring war.

o Domestic Policy: Appointing/dismissing ministers, issuing passports.

• Limitations and Displacement:

 o No New Prerogatives: Cannot be created (BBC v Johns, 1965).

o Displacement by Legislation: E.g., Fixed-Term Parliaments Act 2011, replaced by

Dissolution and Calling of Parliament Act 2022.

o Miller Cases: Prerogative cannot override statutory rights or principles.

NON-LEGAL SOURCES OF THE CONSTITUTION

Definition and Role:

• AV Dicey: Conventions regulate conduct but are not enforceable by courts.

• Tomkins: Conventions are non-legal yet binding rules of constitutional behavior.

• Examples:

o Prime Minister Appointment: Governed by convention.

o Individual Ministerial Responsibility: Ministers provide accurate information to

Parliament.

o Salisbury Convention: House of Lords should not reject bills promised in the election
manifesto.

INTERNATIONAL SOURCES OF UNITED KINGDOM CONSTITUTIONAL LAW

Monism vs. Dualism:

• Monism: International obligations and national laws are the same.

• Dualism: Separate treatment of national and international laws.

• UK’s Dualist System: Treaties require national legislation to be enforceable domestically.

Influence of International Law:

(a) European Community Law:

• Integration and Status:

o Initially through European Communities Act 1972.

o ECA 1972 provided for direct eMect and enforceability.

o Post-Brexit adjustments through the European Union (Withdrawal) Act 2018 and other
related acts.

(b) European Convention on Human Rights (ECHR):

• Binding International Treaty: UK must respect the rights declared.

• Domestic E\ect through Human Rights Act 1998:

o Public authorities must act compatibly with Convention rights.

o Legislation must be interpreted to be compatible with these rights.

• Enforcement and Interpretation: Statutes conflicting with ECHR may be declared incompatible,
requiring adjustment.
Note: ECHR and European Court of Justice are separate entities with distinct roles.

Detailed Bullet Points on Constitutional Conventions

1. Basic Definitions:

• Enabling and Limiting Features of Constitutions:

o Constitutions are designed to check and set limits on the exercise of government power.

o Scholars debate the best methods to constrain government power.

• Two Schools of Thought:

o Political Constitutionalism:

§ Argument: The political process is the most legitimate way to prevent power
abuse.

§ Political Forces of Accountability:

§ Parliament

§ The ballot box

§ The media

§ Public pressure (e.g., demonstrations)

§ Limited Role for Courts: Courts lack democratic legitimacy compared to

political processes.

o Legal Constitutionalism:

§ Argument: The judiciary is better suited to hold the government accountable.

§ Protection for Marginalized Groups: Judges are independent and can protect
unpopular or marginalized groups that lack political representation.

§ Independence from Public Opinion: Judges can safeguard rights against

government overreach.

• Key Definitions:

o A.V. Dicey’s Definition (1885):

§ Conventions regulate conduct but are not enforced by courts.

o Sir Ivor Jennings’ Definition (1958):

§ Conventions provide practical substance to legal principles.

2. Examples of Conventions:

• Powers of the Monarch:

o Appointing a Prime Minister based on majority support in the House of Commons.

o Giving Royal Assent to properly passed Bills.

o Exercising foreign aMairs powers on ministerial advice.

 o Exercising other prerogatives (e.g., mercy) on ministerial advice.

o Appointing and dismissing Ministers on Prime Minister’s advice.

• Government and Parliament Relationship:

o Ministers accountable to Parliament for their departments.

o Collective responsibility of government members.

o Annual summoning of Parliament.

o Salisbury convention: House of Lords respects government manifesto commitments.

• Other Conventions:

o UK Parliament avoids legislating in devolved areas without consent (Sewel Convention).

o Government communications should not have a party-political purpose.

o Confidentiality of government legal advice.

• Uncertainty Around Conventions:

o GeoMrey Marshall highlights the vagueness and variability of conventions, such as

ministerial responsibility, which can be ambiguous and subject to exceptions.

3. Reliance on Conventions in the UK Constitution:

• Interaction of Legal and Political Rules:

o The UK constitution relies heavily on conventions alongside statutes and case law.

o J.A.G. GriMith argues the UK constitution is "political" and capable of changing daily.

• Flexibility of Conventions:

o Adam Tomkins suggests that long-standing conventions with a strong sense of obligation
may not be as flexible as assumed.

4. Defining Conventions:

• Distinguishing Conventions from Practices:

o Conventions have normative value and bind behavior, unlike mere practices or habits.

• Distinguishing Conventions from Laws:

o Basic Position: Conventions are not enforced by courts.

o Case Law:

§ Madzimbamuto v. Lardner-Burke (1969): Conventions not enforceable by

courts.

§ R (Southall) v Secretary of State for Foreign and Commonwealth A\airs

(2003): Political matters, like requiring referendums for major constitutional
changes, are for political judgment, not courts.
 § R (Miller) v Secretary of State for Exiting the European Union (2017): Courts
recognize conventions but do not enforce them.

§ Attorney General v Jonathan Cape Ltd (1976): Courts may consider

conventions, such as collective responsibility, in decisions.

§ Reference re Amendment of the Constitution of Canada (1982): Courts

recognize breaches of conventions as 'unconstitutional' in a conventional
sense.

• Jennings’ Criticisms of Distinction:

o Some laws are also not court-enforced (e.g., Speaker's certificate in Parliament Act
1911).

o Both laws and conventions rely on general acceptance for eMectiveness.

5. Establishing Conventions:

• Jennings’ Three-Fold Test:

o Is there a precedent for the action?

o Did actors believe they were bound by a rule?

o Is there a reason for the rule?

• Declarations and Binding Nature:

o Memorandum of Understanding (2001): Conventions are statements of political intent,

not legally binding, and rely on mutual understanding and agreement.

6. Codifying Conventions:

• Codification Examples:

o Ministerial responsibility appears in the Ministerial Code.

o Civil service impartiality and treaty procedures codified in the Constitutional Reform and
Governance Act 2010.

o The Cabinet Manual details conventions on government formation and decision-making.

o The Sewel convention codified in Scotland Act 1998 and Government of Wales Act 2006,
though still political and unenforceable by courts (per Miller I).

• Distinctions in Codification:

o Between precise and general conventions.

o Between codification and legalization.

o Between codification and enforceability.

• Experience of Australia:

o Some conventions might be enforced in written constitutions, others as non-justiciable

principles or informal agreements.
SEPERATION OF POWERS:

Detailed Notes on Separation of Powers and the Independence of the Judiciary

Judicial Independence

Judicial independence involves two main elements:

1. Individual Independence: Judges in any individual case must be free to reach decisions based
on the law, without external influence.

2. Institutional Independence: The judiciary as an institution must be independent from other

branches of government.

This concept is encapsulated by M. Arden: “Judicial independence involves the judge being free to reach
the decision in accordance with the law, free from influence, and it means respect for the judiciary as an
institution” (M. Arden, "Judicial Independence and Parliaments" in K. Ziegler, D. Baranger, and A.W.
Bradley (eds), Constitutionalism and the Role of Parliaments (2007)).

Historically, UK judicial independence has focused more on individual independence. Institutional

separation was less evident due to historic links between senior judiciary and other government
branches, exemplified by the Appellate Committee of the House of Lords and the pre-2003 oMice of Lord
Chancellor.

Security of Tenure

• Judges have enjoyed security of tenure since the Act of Settlement 1701, ensuring they cannot be
dismissed by Ministers for judgments unfavorable to the government.

• Supreme Court Justices (s.33 Constitutional Reform Act 2005), Lords Justices of Appeal, the Lord
Chief Justice, and High Court judges are dismissible only by an address to the Crown supported
by both Houses of Parliament. This has occurred only once in 200 years (Sir Jonah Barrington,
1830).

Conventions and Legal Protections

• Judges resign political party memberships upon appointment.

• The sub judice rule prevents Parliament from discussing ongoing adjudications, supporting
judicial independence.

• Article 6 of the European Convention on Human Rights (ECHR), given domestic eMect by the
Human Rights Act 1998, ensures the right to a fair trial by an independent and impartial tribunal.

Functional Overlaps

Executive Involvement in Sentencing

R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837:

• The Home Secretary had the power to set tariMs for mandatory life sentences under s.29 Crime
(Sentences) Act 1997, which was challenged as violating Article 6(1) ECHR.

• The House of Lords declared this incompatible under s.4 HRA, leading to the repeal of s.29 by the
Criminal Justice Act 2003.

Judicial Exercise of Legislative Powers

 1. Common Law Development:

o Shaw v DPP [1962] and Knuller Ltd v DPP [1973] demonstrated judicial creation of
common law oMences.

2. Legislation Interpretation:

o The Human Rights Act 1998, particularly s.3, impacts judicial interpretation of
legislation, requiring compatibility with Convention rights.

o Ghaidan v Mendoza [2004] illustrated courts reading in words to make legislation

Convention-compliant, balancing this against Parliament's legislative intent.

Institutional Overlaps

The O\ice of Lord Chancellor

• Historically, Lord Chancellors operated across all government branches, a situation at odds with
separation of powers principles. Reforms under the Constitutional Reform Act 2005 addressed
this by:

o Transferring judicial powers to the Lord Chief Justice.

o Establishing the Judicial Appointments Commission.

o Preventing future Lord Chancellors from sitting as judges.

The Law Lords/Appellate Committee of the House of Lords

• Before the UK Supreme Court was established, Law Lords acted as both legislators and judges,
which raised concerns about judicial impartiality.

• A constitutional convention against participation in political controversy was observed.

ECHR Influence and Judicial Reform

• Article 6(1) ECHR demands judicial independence and a clear separation of judicial functions
from legislative and executive roles.

• Cases like McGonnell v UK and Procola v Luxembourg emphasized the need for judicial
impartiality, influencing UK reforms.

Constitutional Reform Act 2005

A\irmation of Constitutional Principles

• Rule of Law: s.1 aMirms that the Act does not aMect the constitutional principle of the rule of law.

• Judicial Independence: s.3 mandates that the Lord Chancellor and other Ministers uphold
judicial independence.

Changes to the O\ice of Lord Chancellor

• Retained but redefined, with future holders not required to be legally qualified.

• Lord Chancellor's judicial roles transferred to the Lord Chief Justice.

• Judicial appointments managed by the Judicial Appointments Commission.

Establishment of the Supreme Court

• Created in 2009, the UK Supreme Court replaced the Appellate Committee of the House of
Lords, providing a clearer separation between judiciary and legislature.

• Jurisdiction remains largely similar to its predecessor, but judges cannot be Parliament
members.

Judicial Appointments

• The Judicial Appointments Commission, established by the CRA 2005, selects judges based on
merit while encouraging diversity.

Post-Reform Separation of Powers

• The reforms advanced judicial independence and separation from executive and legislative
branches.

• The fusion of executive and legislature remains, characteristic of the Westminster system.

• Separation of powers acts as a guiding principle rather than a strict constitutional rule.
SOVEREIGNTY:

The Idea of Legal Sovereignty

1. Introduction:

• Legal Sovereignty of Parliament:

o Considered a foundational principle of the UK constitution.

o Based heavily on A.V. Dicey’s influential doctrine.

2. Traditional Doctrine by Dicey:

• Positive Aspect:

o Parliament can make or unmake any law.

• Negative Aspect:

o No outside person or body can override Parliament’s legislation.

• Unlimited Legal Power:

o Parliament has the authority to remodel the constitution, prolong its own life, legalize
illegal acts, and implement drastic political changes without legal remedy (Ivor
Jennings).

3. Limits of the Doctrine:

• Moral and Political Limits:

o Parliament might face strong moral or political opposition to certain actions, but legally,
it still holds the power to act (Madzimbamuto v Lardner-Burke [1969]).

4. Court Acceptance of Parliamentary Sovereignty:

• Express and Implied Repeal:

o Express Repeal: Clear statutory language invalidating previous laws.

o Implied Repeal: Later laws override earlier ones if inconsistent (Ellen Street Estates v
Minister of Health [1934]).

5. Political Power Distinguished:

• Dicey’s Recognition:

o Parliament’s power is politically limited by what it would or could pass.

• Jennings’ Critique:

o Legal sovereignty is a concept describing the relationship between Parliament and the
courts, indicating legislative supremacy rather than true unlimited power.

The Traditional Doctrine Scrutinized

1. Positive Aspect of Sovereignty:

• No Entrenchment:
 o No law is beyond Parliament’s power to change.

• Constitutional Laws:

o No distinction between constitutional and other laws.

• Judicial Review:

o Courts cannot void parliamentary enactments based on constitutional principles.

• Evidence:

o Legislative history and judicial responses aMirm the supremacy of Parliament (Lord
Bingham in Jackson v Attorney General [2006]).

o Criticisms highlight that Parliament’s powers are conceptually unlimited but practically
constrained (Ivor Jennings).

2. Negative Aspect of Sovereignty:

• Judicial Power:

o Courts lack the power to invalidate Acts of Parliament (Cheney v Conn [1968]).

o The executive cannot alter laws unilaterally (The Zamora [1916]).

• Academic Debate:

o Theoretical limits to Parliament’s power discussed, with hope such scenarios never
materialize (Lord Neuberger).

• Historical Precedents:

o Instances where courts have voided parliamentary acts conflicting with common law
principles (Dr. Bonham’s Case (1609)).

o Suggestion that extreme legislative actions could be judicially challenged (Moohan v

Lord Advocate [2015]).

3. Parliamentary Sovereignty Illustrated:

• Express Repeal:

o Clear statutory language repealing earlier statutes (Ellen Street Estates v Minister of
Health [1934]).

• Implied Repeal:

o Later statutes implicitly repealing earlier conflicting statutes (Dean of Ely v Bliss (1842)).

Mechanisms of Constitutional Limitation

1. Forms of Constitutional Protection:

• Specific Form of Words:

o Repeal requires specific language, as in Section 33(1) of the Canadian Constitution.

• Special Legislative Process:

 o Amendments need special procedures, such as supermajorities or referendums (Article
5 of the US Constitution).

• Prohibition of Amendments:

o Certain constitutional aspects cannot be amended (German Basic Law, Article 79).

2. Application in the UK:

• Hypothetical Scenarios:

o Form of Words: Repeal only through explicit language.

o Special Procedure: Repeal requiring a supermajority or referendum.

o Content Restriction: Legislation permanently protected from repeal.

3. Can Parliament Bind Itself?

Orthodox ‘Continuing Sovereignty’ Response:

• Express and Implied Repeal:

o Parliament can always repeal past enactments.

o No Parliament can bind future Parliaments (Vauxhall Estates Ltd v Liverpool Corpn
[1932]; Ellen Street Estates v Minister of Health [1934]).

• Continuing Sovereignty:

o Each Parliament has the same sovereign powers as its predecessors.

Self-Embracing Sovereignty Response:

• Procedural Limits:

o Parliament could potentially limit itself through procedural requirements rather than
substantive restrictions.

• Trethowan Case:

o Supports the idea that procedural requirements could bind future legislatures (Attorney-
General for New South Wales v Trethowan [1932]).

• Endorsements:

o Examples like the European Communities Act 1972, Human Rights Act 1998, Northern
Ireland Act 1998, and the Scotland Act 1998 suggest procedural limitations.

4. Recognition of Self-Limitation:

• Judicial Recognition:

o Courts acknowledge practical and political realities limiting parliamentary actions

(Jackson v Attorney General).

Conclusion:

• Legal vs. Political Sovereignty:

 o The debate continues on whether Parliament can self-impose limitations, reflecting a
tension between theoretical legal principles and practical political realities.

1. Primary Legislation and Common Law

o Primary legislation holds supremacy over domestic sources of law, including common
law.

o In cases of conflict, Acts of Parliament override judicially-made law.

o The common law operates under the assent and supervision of Parliament.

o This concept is expressed by Dicey in "An Introduction to the Study of the Law of the
Constitution."

2. Primary Legislation and Prerogative

o Statutory law also supersedes prerogative powers.

o The case of Attorney-General v De Keyser’s Royal Hotel (1920) highlights that statutes
abridge or curtail prerogative powers while in force.

o This principle was exemplified by the Fixed Term Parliaments Act 2011, rendering the
prerogative of dissolution inoperable.

3. Primary Legislation and ‘Constitutional’ Principle

o Historically, common law could invalidate Acts of Parliament if they contradicted

common right and reason, as stated in Dr Bonham’s Case (1610).

o However, modern courts have not refused to obey statutes on these grounds, as seen in
R v Jordan [1967].

o Recent cases like R (Buckinghamshire CC) v Secretary of State for Transport [2014] and R
(Evans) v Attorney General [2015] provide insights into the evolving relationship between
statutes and common law principles.

4. Primary Legislation and International Law

o The UK follows a 'dualist' system, treating national and international laws separately.

o Treaties and international obligations do not automatically become domestic law

without parliamentary implementation, as established in Mortensen v Peters (1906).

Explanation of Case Law

• De Keyser’s Royal Hotel (1920): This case aMirmed that statutes limit prerogative powers while
in force, illustrating the supremacy of statutory law over prerogative.

• R v Jordan (1967): The court rejected the claim that the Race Relations Act 1965 was invalid for
curtailing free speech, indicating that modern courts don't invalidate statutes on common law
grounds.

• R (Buckinghamshire CC) v Secretary of State for Transport (2014): This case acknowledged
the existence of constitutional statutes, distinct from ordinary legislation, suggesting limitations
on implied repeal.
 • R (Evans) v Attorney General (2015): Lord Neuberger's ruling showcased the principle of legality,
asserting that executive actions must not violate fundamental rights unless expressly stated in
law.

Interpretative Role of Courts

• Presumptions:

o Retroactivity: Courts presume against retroactive laws unless explicitly stated by the
legislature (Phillips v Eyre (1870)).

o Jurisdiction: Courts are wary of ouster clauses and preserve their jurisdiction unless
specifically constrained by statute (Anisminic Ltd v Foreign Compensation Commission
(1969)).

• Recognition of Common Law Rights:

o Courts uphold common law rights and scrutinize legislative intent to protect
fundamental rights (R v Lord Chancellor ex parte Witham (1998), R v Secretary of State
for the Home Department ex parte Simms [2000]).

• Constitutional Statutes:

o Thoburn v Sunderland City Council (2002) introduced the concept of constitutional

statutes, which cannot be impliedly repealed and require express legislative intent for
alteration.

o The case law illustrates the evolving nature of constitutional principles in the UK legal
framework.

Constitutional Function of Courts

• Subservient Role: Traditionally, courts were considered subservient to Parliament, merely

implementing legislative intent.

• Constitutionalization: Legislative developments such as the European Communities Act 1972

and Human Rights Act 1998, along with common law developments, have led to a more
'constitutional' role for courts.

• Common Law Development: The principle of legality and the recognition of a hierarchy of
statutes reflect the courts' evolving role in interpreting laws based on constitutional principles.

1: THE COMMON LAW CHALLENGE:

Judicial Assertion of Common Law Rights:

• Courts recognize and protect rights existing at common law, sometimes imposing limitations on
parliamentary sovereignty by requiring express language in legislation to interfere with common
law rights.

• Courts view common law rights and constitutional statutes as complementary to parliamentary
sovereignty rather than opposing it.

Case Law Examples:

 • R (on the application of Jackson) v Attorney-General [2005] UKHL 56:

o Challenge: Argued that the Parliament Acts 1911 and 1949, by bypassing the House of
Lords, created a form of delegated legislation.

o Court Findings: Both Acts were upheld as valid primary legislation. The purpose was to
limit the House of Lords' obstruction powers, not expand the Commons' powers.

o Significance: Established that Parliament Acts create primary legislation, not delegated
legislation.

Limits on Parliamentary Sovereignty:

• Parliament Acts 1911 and 1949: Provided a mechanism to bypass House of Lords opposition to
legislation.

• Judicial Limits: In exceptional cases, courts might challenge legislation that undermines
fundamental rights or the rule of law.

2: THE EUROPEAN UNION LAW CHALLENGE:

Integration of EU Law into UK Legal System:

• European Communities Act 1972 (ECA): Made EU law enforceable in the UK.

• Court Response: Initially interpreted UK law to comply with EU law, later established supremacy
of EU law over conflicting national law.

Case Law Examples:

• Secretary of State for Transport ex p Factortame (No 2) (1992):

o Conflict: UK law conflicted with EU law on non-discrimination.

o Court Decision: EU law prevails; UK law set aside to the extent of inconsistency.

o Significance: Established supremacy of EU law over national law.

Key Points:

• Parliament voluntarily accepted EU law supremacy through the ECA.

• Courts interpret UK law to comply with EU law and prioritize EU law over conflicting national law.

In Summary:

• Both common law rights and EU law integration impose limitations on parliamentary sovereignty,
but these are seen as complementary rather than opposing. Courts play a crucial role in
interpreting and upholding these legal principles, ensuring a balance between legislative power
and fundamental rights.

1: THE COMMON LAW CHALLENGE:

Overview:

• Judicial support for rights existing at common law and the recognition of certain statutes as
having constitutional status impose limitations on Parliament's legislative capacity, requiring
 explicit language in legislation to interfere with common law rights or repeal provisions of
constitutional statutes.

• Despite these limitations, neither common law rights nor constitutional statutes are presented
as opposed to sovereignty; rather, they are seen as compatible, as they don't provide substantive
barriers to Parliament's legislative objectives but require clear language.

• Certain judicial speeches in R (on the application of Jackson) v Attorney-General [2005] UKHL 56
illustrate willingness to suggest substantive limits to Parliament's legislative competence.

Case Law and Legal Principles:

• Bradley and Ewing: Courts attribute legislative supremacy only to primary legislation, not
resolutions of the House of Commons or instruments of subordinate legislation.

• Edinburgh and Dalkeith Railway Co v Wauchope: Courts can't inquire into the manner of
introduction or passage of an Act; only parliamentary roll matters.

• Pickin v British Railways Board [1974] AC 765: Upheld the enrolled bill rule; Parliament's process
prior to enactment isn't subject to judicial scrutiny.

• Parliament Acts 1911 and 1949: Limited House of Lords' power to veto primary legislation,
allowing for delayed approval.

• R (on the application of Jackson) v Attorney-General: Upheld validity of Hunting Act 2004 enacted
under Parliament Acts, rejecting challenges.

Judicial Views on Parliamentary Sovereignty:

• Lord Bingham: Acknowledged the court's role in resolving legal questions, especially when
Parliament can't address them.

• Lord Steyn and Baroness Hale: Suggested potential limits to parliamentary sovereignty in
extreme cases, emphasizing the evolving nature of sovereignty.

• Lord Hope: Acknowledged Parliament's sovereignty but recognized its evolving nature, especially
considering European legislation.

Summary of Views:

• Views on parliamentary sovereignty vary, with some suggesting potential limits in exceptional
cases.

• Recent decisions suggest a cautious approach to common law limitations on parliamentary

sovereignty.

2: THE EUROPEAN UNION LAW CHALLENGE:

Overview:

• EU law's supremacy over national law posed challenges to Parliament's sovereignty upon
Britain's entry into the European Community.

• The European Communities Act 1972 incorporated EU law into UK law, subjecting national laws
to EU principles and interpretations.

Case Law and Legal Principles:

 • Factortame (No. 2): EU law prevails over national law, even when in conflict; the European
Communities Act 1972 voluntarily limited Parliament's sovereignty.

• Secretary of State for Transport ex p Factortame (No 2): EU law prevails even when in conflict
with domestic law.

• R (Miller) v Secretary of State for Exiting the European Union: Emphasized the supremacy of
EU law under the European Communities Act 1972.

Post-Brexit Legislation:

• European Union (Withdrawal) Act 2018: Repealed the European Communities Act 1972 but
retained EU law until exit day.

• European Union (Future Relationship) Act 2020: Ratified the Trade and Cooperation
Agreement, which governs UK-EU relations post-Brexit without posing a challenge to
parliamentary sovereignty.

Conclusion:

• Post-Brexit legislation has preserved parliamentary sovereignty while adjusting the legal
landscape to accommodate changes in the UK's relationship with the EU.

• Although EU law's direct eMect has ended, its legacy remains in domestic law through retained
EU law and other agreements.
RULE OF LAW:

Introduction:

• The Rule of Law is a constitutional principle embodying diMerent conceptions, including core,
extended, and substantive interpretations.

• Case law provides insights into the practical application and understanding of the Rule of Law in
the UK legal system.

A. Core Rule of Law:

1. Principle of Legal Authority: Public oMicials must act within legal authority.

o Entick v Carrington (1765): Highlighted the requirement of specific legal authority for
government actions, emphasizing protection against arbitrary power.

o European Convention on Human Rights (ECHR): Mandates that interferences with

rights must be prescribed by law, ensuring legality of government actions.

2. Formal Equality before the Law: Both public oMicials and private individuals are equal before
the law.

o M v Home Oaice (1994): Illustrated the application of formal equality, ensuring equal
treatment under the law.

o Precedent System: Ensures consistency and predictability in legal decisions, promoting

formal equality.

B. Extended Rule of Law:

1. Formal Characteristics of Law:

o Clarity and Precision: Laws must be clear and precise to guide conduct.

o Non-Retrospectivity: Laws should not have retrospective eMect, ensuring fairness and
predictability.

o Fair Trial and Due Process: Individuals must have access to fair trials and due process.

o Access to Courts: Access to courts is essential for enforcing rights and obligations.

o Review of Public Authorities: Courts should review actions of public authorities for
compliance with the law.

C. Substantive Rule of Law:

• Focuses on the content of laws, ensuring they uphold fundamental rights and values.

• Critically assesses whether laws align with moral principles and societal values.

• May lead to increased debate and potential conflict between courts and Parliament over the
moral content of laws.

D. Critical Approaches:

• Postcolonial Critique: Examines how the Rule of Law was applied in colonial contexts and its
implications for racial equality.
 • Critique of Capitalism: Challenges the Rule of Law's role in protecting property rights over
social justice and redistribution of resources.

Case Law Explanation:

• Entick v Carrington (1765): Established the principle that government actions must have
specific legal authority, preventing arbitrary exercise of power.

• M v Home O\ice (1994): Demonstrated the application of formal equality, ensuring equal
treatment under the law.

• Sunday Times Case (1979-80): Emphasized the requirement for laws to be clear and precise to
guide conduct eMectively.

• Evans v Attorney General (2015): Highlighted the importance of judicial review in scrutinizing
executive actions for compliance with the law.

• R (UNISON) v Lord Chancellor (2017): Reinforced the significance of access to courts in

upholding the Rule of Law and ensuring legal accountability.

• Miller v Secretary of State for Exiting the European Union (2017): Illustrated the judiciary's role
in upholding the Rule of Law and ensuring adherence to legal principles in significant
constitutional matters.

A. Government action interfering with individuals must be authorized by law

1. Basic Principle Established by Entick v Carrington (1765):

o In this case, agents of the King, acting under a warrant issued by the Secretary of State,
entered the house of Entick without legal authority, leading to a common trespass.

o Chief Justice Camden emphasized that every invasion of private property, no matter how
minor, constitutes a trespass unless justified by specific legal authority.

o The ruling established that government actions must have a lawful basis and cannot be
arbitrary or discretionary.

2. European Convention on Human Rights (ECHR) and Human Rights Act 1998:

o Article 8 of the ECHR protects the right to privacy and family life, stating that
interferences with this right must be "prescribed by" or "in accordance with" the law.

o The case of Malone v UK (1985) highlighted the importance of legal authorization for
actions like telephone tapping, stating that mere absence of prohibition doesn't make an
interference "in accordance with the law."

3. Challenges from Broad Discretionary Powers:

o R v Inland Revenue Commissioners, ex parte Rossminster Ltd (1980) involved the Taxes
Management Act 1970, allowing tax oMicers to enter property and seize evidence based
on reasonable suspicion of tax fraud.

o While the Court of Appeal was concerned about the potential for abuse, the House of
Lords upheld the warrants, acknowledging the significant intrusion on individual rights.

B. Equality before the Law

 1. Law Binds Government and Governed:

o M v Home OMice (1994) emphasized that government actions are not above the law, with
judges having authority to enforce legal obligations against ministers.

o The ruling rejected the notion that the executive should obey the law only as a matter of
grace.

2. Attempts to Exclude Judicial Review:

o Ouster clauses, like in the Regulation of Investigatory Powers Act 2000, attempt to limit
judicial review. However, courts maintain a presumption against such exclusions.

3. Foreign Influence and Unequal Application of Laws:

o In R (Corner House Research and another) v Director of the Serious Fraud OMice (2008),
the House of Lords condemned yielding to foreign pressure, upholding the
independence of decision-making in the rule of law.

C. Law Must Be Su\iciently Clear

1. Clarity Requirement:

o The Sunday Times case (1979-80) emphasized that laws must be formulated clearly to
enable individuals to regulate their conduct.

o Lack of clarity in laws governing actions can lead to arbitrary enforcement, as seen in
Gillan and Quinton v UK (2010) regarding stop and search powers under the Terrorism
Act 2000.

2. Relative Clarity:

o While absolute certainty is unattainable, laws should provide reasonable foreseeability

of consequences, balancing clarity with adaptability to changing circumstances.

D. Non-Retroactivity of Law

1. Upholding Principle Against Retroactivity:

o Courts generally uphold the principle that laws aMecting rights should not have
retrospective force, ensuring fairness and legal certainty.

o Article 7 of the ECHR reinforces this principle, prohibiting punishment for acts that were
not criminal at the time.

2. Exceptions and Challenges:

o Occasionally, retrospective legislation is used, and judge-made criminal law may

retroactively aMect individuals, challenging the non-retroactivity principle.

E. Fair Trials, Independent Judiciary, and Access to Courts

1. Role of Judiciary in Upholding Rule of Law:

o Miller v Secretary of State for Exiting the European Union (2017) emphasized the
judiciary's role in upholding and applying the law impartially.

o Fair trials and access to courts are constitutional rights, essential for upholding the rule
of law and protecting individual liberties.
 2. Challenges to Access to Justice:

o Measures like cuts to legal aid funding restrict access to justice, undermining the rule of
law.

o R (UNISON) v Lord Chancellor (2017) highlighted the importance of access to justice,

criticizing fees that hindered individuals' ability to seek remedies through courts.

F. Judicial Review and Review of Public Authorities

1. Fundamental to Rule of Law:

o Judicial review allows courts to scrutinize the decisions and actions of public
authorities, ensuring compliance with the law.

o Evans v Attorney General (2015) aMirmed the courts' role in reviewing executive actions,
emphasizing the rule of law's requirement for accountability and scrutiny.

1. Introduction: The Nature of Prerogative Powers

• Prerogative powers originate from custom, constituting residual powers of the Crown or central
government, derived from common law rather than statute.

• Colin Munro defines royal prerogative as legal attributes unique to the Crown, surviving from
common law customs.

• These prerogatives, not created but recognized by common law, present an immediate challenge
to the Rule of Law due to their unclear number and scope.

• The government's refusal to disclose the full extent of prerogative powers poses a challenge to
parliamentary oversight, creating a "constitutional black hole."

2. Do Prerogative Powers Conform to the Basic Rule of Law Principle?

(i) Courts’ Power to Determine Existence of Prerogative Powers:

• The Case of Proclamations (1611) establishes that the King's prerogative is subject to the law of
the land.

(ii) Limitation on Scope of Prerogatives:

• BBC v Johns (1965) asserts that the scope of prerogatives cannot expand beyond established
limits, as determined by statute.

(iii) Evidence for Legal Existence of Prerogatives:

• R v Secretary of State for the Home Dept, ex parte Northumbria Police Authority (1988) illustrates
the courts’ recognition of a prerogative even in the absence of explicit citation, highlighting the
scarcity of references in legal texts.

• Contrast with Entick v Carrington (1765), emphasizing that legal powers should be found in
existing legal texts.

(iv) Parliamentary vs. Prerogative Powers:

 • Attorney General v De Keyser’s Royal Hotel (1920) delineates that where Parliament has enacted
statutory powers, the Crown must adhere to those provisions rather than relying on prerogative
powers.

• R v Secretary of State for the Home Department ex parte Fire Brigades Union (1995) indicates that
prerogative powers cannot be used to frustrate parliamentary will, even if the relevant statute is
not yet in force.

• R (Miller) v Secretary of State for Exiting the European Union (2017) establishes that prerogative
powers cannot be used to change domestic law without parliamentary approval.

3. Control of Prerogative Powers by the Courts

(i) Traditional Position vs. Proper Legal Control:

• Laker Airways v Department of Trade (1977) marks a shift towards judicial scrutiny of prerogative
powers in the interest of the public good.

• Council for Civil Service Unions v Minister for the Civil Service (1984) confirms the justiciability of
prerogative powers.

(ii) Excluded Categories of Prerogatives:

• GCHQ case (1984) suggests certain prerogatives, such as defense of the realm, dissolution of
Parliament, and treaty-making, as non-justiciable due to their subject matter.

• Bancoult v Secretary of State (2009) challenges this notion by subjecting Prerogative Orders in
Council to judicial review.

(iii) Developments in the Scope of Justiciable Prerogatives:

• R v Secretary of State for the Foreign OMice ex parte Ress Mogg (1994) and R v Secretary of State
for Foreign and Commonwealth aMairs ex p Everett (1989) demonstrate courts' willingness to
review certain prerogative powers.

• R (Miller) v Prime Minister (2019) establishes that the lawfulness of exercising prerogative powers
is justiciable, allowing courts to determine the extent of these powers.

Territorial Constitution:

• Governmental powers can be divided territorially and functionally.

• Territorial constitution governs the geographic distribution of power within a constitutional order.

• Focus in this lecture is on devolution in Scotland, Wales, and Northern Ireland within the UK
constitution.

What is Devolution?

• Devolution: Delegation of power from central authorities to lower tiers of government.

• Unlike federalism, devolved powers are not constitutionally entrenched; they derive from statute.

• Devolution involves transferring and sharing powers between government institutions within a
legislative framework.

Rationales for Devolution:

 • Decentralization: Decision-making closer to those aMected.

• Response to territorial diversity: Addressing distinct identities within the UK.

• Minority protection: Preventing domination by larger nations (e.g., England).

The United Kingdom: From Union to Devolution

• Historical unions: England-Wales (1535-1542), England-Scotland (1707), Great Britain-Ireland

(1801).

• Unitary state with sovereignty in UK Parliament.

• Recognized distinctiveness of component territories pre-devolution.

Devolved Institutions

• Established by Acts of Parliament: Scotland Act 1998, Northern Ireland Act 1998, Government of
Wales Act 2006.

• Similarities: Unicameral legislature, proportional representation, Westminster-style government.

• DiMerences: Varying degrees of devolved powers.

Scotland

• Strongest devolved powers with significant policy and taxation control.

• High support for devolution, reflected in referendum results.

• Recent reforms due to growing independence sentiment.

Wales

• Initially weaker devolution, resembling enhanced local government.

• Subsequent reforms led to primary legislative powers in 2011 and 2017.

• Current model resembles Scotland's but with weaker powers.

Northern Ireland

• Unique devolved powers and institutional design.

• Consociational model in governance due to historical and political circumstances.

• Peculiar features derived from the Belfast/Good Friday Agreement.

Devolved Competence

• Legislative and executive powers exercised within devolved competence.

• Subject to limits set by devolution statutes and additional controls.

• Judicial review and political powers ensure adherence to competence limits.

The Anomalous Position of England

• Lack of separate devolved institutions.

 • Local government powers with directly elected mayors do not equate to devolution as in other
parts of the UK.

• Dual function of UK Parliament poses challenges (e.g., West Lothian Question).

The Constitutional Status of Devolution

• Devolution lacks legal entrenchment but has political recognition.

• Sewel Convention ensures consent of devolved legislatures on devolved matters.

• Challenges post-Brexit highlight tensions and lack of enforcement mechanisms.

The Future of the Territorial Constitution

• Unstable due to tensions and asymmetries.

• Calls for more coherent approach, possibly towards federalism.

• Obstacles include constitutional tradition, asymmetrical governance, and political reluctance,

especially in England.
ACCOUNTABILITY:

1. Introduction to Accountability

• Definition: Accountability is the obligation of governmental actors to explain, justify, and rectify
their decisions and actions. It involves taking responsibility for errors and accepting sanctions
when necessary.

• Forms of Accountability:

o Legal Accountability: Concerns the lawfulness of government decision-making,

enforced through the courts.

o Financial Accountability: Concerns the lawfulness and value for money of government
expenditure, monitored by independent audit bodies.

o Political Accountability: Focuses on the accountability of government to Parliament

and the electorate for the appropriateness and eMectiveness of political choices.

• Significance: Political accountability, closely tied to democracy, is fundamental in the UK

constitution, ensuring that government decisions are subject to scrutiny and oversight.

2. Conventions of Ministerial Responsibility

• Collective Ministerial Responsibility:

o Purpose: To maintain the confidence of the House of Commons collectively.

o Requirement: The government must resign if it loses the confidence of the House of
Commons.

• Individual Ministerial Responsibility:

o Responsibility: Ministers are individually accountable for their own conduct and that of
their departments.

o Duty: They must explain their actions to Parliament and may be required to resign for
personal or departmental failings.

3. Collective Responsibility in Action

• Three Obligations of Collective Responsibility:

o Confidence Principle: Government must resign if it loses confidence of the House of

Commons.

o Unanimity Principle: Members must publicly support government policy or resign.

o Confidentiality Principle: Cabinet discussions and government policy formulation must

not be disclosed.

4. Individual Responsibility in Action

• Explanatory Accountability:

o Importance: Ministers must provide accurate information to Parliament and be open

with the public.
 o Areas of Accountability: Personal conduct, departmental policies, decisions, and
actions.

• Amendatory Accountability:

o Responsibility: Ministers must take responsibility for errors, which may involve apology,
corrective action, or resignation.

o Instances: Misleading Parliament, personal misconduct, major policy failings,

departmental errors.

5. Parliamentary Scrutiny

• Mechanisms:

o Debates and Votes: Covering government bills, secondary legislation, private members'
bills, and various types of debates.

o Parliamentary Questions: Both oral and written questions.

o Select Committees: Conduct in-depth inquiries, call for evidence, and publish reports.

• Enforcement Mechanisms:

o Votes of No Confidence: For collective responsibility.

o Motions of Censure: For individual responsibility.

o Contempt of Parliament Proceedings: Against ministers who fail to be accountable.

6. Case Law and Examples

• Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484: Case highlighting the legal
enforceability of Cabinet confidentiality.

• Examples of Ministerial Accountability:

o Amber Rudd's resignation in 2018.

o Boris Johnson's accountability in the "Partygate" scandal in 2023.

• Norman Lamont and "Black Wednesday", 1992: Illustrates the protection of ministers by
collective responsibility.

• Crichel Down and the Maxwell-Fyfe Guidelines, 1954: Defines circumstances where ministers
should take responsibility for departmental errors.

• Michael Howard and the Parkhurst Prison escape, 1995: Raises questions about the
distinction between policy and administration.

• SE Finer, ‘The Individual Responsibility of Ministers’ (1956): Discusses the rare occurrence and
unpredictability of ministerial resignations.

Conclusion

• Parliamentary Enforcement: While mechanisms exist, they are rarely used and even more rarely
successful, highlighting challenges in enforcing accountability in practice.

Problems in Securing Political Accountability:

 • Importance of Ministerial Accountability:

o Central to the UK constitution.

o Crucial for publicizing governmental activities and constraining executive decisions.

o Essential for maintaining high standards of government decision-making and integrity.

• Weaknesses:

o Lack of clarity in conventional rules.

o Accountability gaps.

o DiMiculty in accessing information.

o Limited time and resources for scrutiny.

o Limited and uncertain remedies.

o Influence of party politics.

• Impact:

o Government expansion makes accountability and scrutiny challenging.

o Strengthening of the party system limits Parliament's oversight.

• Responses:

o Expansion of legal controls, particularly through judicial review.

o Attempts to supplement and reinforce political controls.

Reinforcing Political Accountability:

1. The Parliamentary Ombudsman:

• Established by the Parliamentary Commissioner Act 1967.

• Independent oMicer of Parliament investigating complaints against government departments.

• Empowered to investigate instances of maladministration.

• Remedies recommended by the Ombudsman are not legally enforceable but have high
compliance.

• Answerable to the House of Commons Public Administration and Constitutional AMairs

Committee.

2. The Ministerial Code and the Independent Adviser on Ministerial Interests:

• Sets standards of behavior for ministers.

• Addresses personal conduct, departmental conduct, collective responsibility, and relations with
Parliament.

• Independent Adviser on Ministerial Interests provides confidential advice and conducts

investigations.

• Prime Minister retains final decision-making authority on breaches of the Code.

 • Judicial review applicable in interpreting aspects of the Ministerial Code (R (FDA) v Prime Minister
[2022] 4 WLR 5).

3. Freedom of Information Legislation:

• Freedom of Information Act 2000 (FOIA) enacted in response to government secrecy scandals.

• Provides a right of access to information subject to exemptions.

• Exemptions include those related to national security and government policy formulation.

• Information Commissioner and Information Rights Tribunal handle complaints.

• Ministerial certificates can override disclosure duty but subject to parliamentary scrutiny (R
(Evans) v Attorney General [2015] UKSC 21).

The Juridification of Parliamentary Accountability:

• Legal Principle vs. Convention:

o R (Miller) v Prime Minister/Cherry et al v Advocate General for Scotland [2019] UKSC 41:

§ Prorogation preventing ministerial accountability to Parliament deemed

unlawful if it frustrates Parliament's ability to carry out its constitutional
functions.

§ Court intervention justified if prorogation significantly obstructs parliamentary

scrutiny, highlighting the legal dimension of parliamentary accountability.

Key Features of the UK's Constitution:

• Flexibility:

o Parliamentary sovereignty.

o Conventions and practices.

o No special procedures for constitutional change.

Impact of Constitutional Change:

• Institutions, principles, doctrines, practices, and the constitution's character.

The “New” British Constitution

Transition from Old to New:

• Shift from the "old" to the "new" British constitution.

• Evolutionary process vs. sovereignty of Parliament.

Key Features:

• Old British Constitution:

o Unitary.

o Dominated by Parliamentary sovereignty.

o Emphasis on political rules and practices.

 • New British Constitution:

o Juridification: Increased reliance on legal rules.

o Dispersal of power to Europe, devolved bodies, regulators, courts, and the people.

o Decline of Parliamentary sovereignty.

Brexit and the Constitution

Brexit's Impact:

• High Point of the New Constitution?:

o Referendum vs. Parliamentary democracy.

o Creative judicial rulings during the process.

o Territorial conflicts like the Northern Ireland Protocol.

Brexit as a Turning Point:

• Motivation to restore Parliamentary/national sovereignty.

• Take back control from various entities, including the EU, devolved bodies, international law,
courts, and regulatory bodies.

The Constitution after Brexit

Resilience of the Old Constitution:

• Restoration of the political constitution.

• Partial reassertion of unitary constitution.

• ReaMirmation, extension, or change in Parliamentary sovereignty.

Rise of Something New:

• Growth of unchecked executive power.

• Decline in adherence to conventions.

Where Next for the UK Constitution?

Impact of Political Change:

• 2024/5 UK General Election outcomes.

• Influence of other political forces like nationalism.

Role of the Courts:

• Potential constitutional battles.

• Assertiveness of judges in upholding constitutional norms.