Chapter 3: Key Principles of the UK Constitution Flashcards
1
Q
Key principles of the UK Constitution
1 Characteristics of the UK Constitution
A
1.1 Purpose of a constitution: Before we consider the character of the ‘UK Constitution’, it is useful firstly to assess the purpose
of a constitution in the modern democratic world.
2
Q
Inherent idea of constitutionalism
A
There is no single definition of what constitutional arrangements are for but there are generally
considered to be certain core objectives and principles inherent in the idea of ‘constitutionalism’.
* Exercise of government power should be within legal limits, and accountable in law.
* Power should be dispersed between the organisations of the state, so that it does not become
concentrated in one body or person.
* Government should be accountable to the people.
* Fundamental rights and freedoms of citizens should be protected.
3
Q
1.2 A constitution by design?
A
The vast majority of modern constitutions are the product of design. They are often created at a turning point in the particular nation’s history, such as the establishment of a new regime
following reform or revolution, or after conflict, liberation or the achieving of independence.
4
Q
Unusual Nature of the UK Constitution
A
The unusual nature of the UK’s constitution is that it has not been the product of such forces. Instead, it has evolved over a considerable period of time in an unplanned way. Nevertheless, it is
generally believed that the UK is a constitutional state with rules that regulate state power.
5
Q
Introduction to the Study of the Law of the Constitution’
A
The leading British constitutional theorist, and author of the ‘Introduction to the Study of the Law of the Constitution’ (1885), Professor Albert Venn Dicey, referred to the constitution in the terms below
Constitution: ‘That set of rules which directly or indirectly affect the distribution and exercise
of sovereign power in the state.’
6
Q
1.3 ‘Sovereign power’
A
The word ‘sovereign’ in constitutional law has more than one meaning. It originally meant simply the monarch: the King or Queen. Today, it can still be used in this way. However, it is also understood to refer to the source of primary authority or ultimate power in the state.
Dicey’s description refers to the ‘distribution and exercise’ of this power. This is a reference to how
power is divided between the different organisations of the state. The functions of a state can generally be divided into three distinct areas:
1) The Legislature
2) The Executive
3) The Judiciary
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Q
1.4 Distribution and exercise of power
Legislature
A
The legislature: The legislature is the body that enacts new law, and repeals or amends existing
law. In the UK, this function is said to be carried out by ‘the King in Parliament’. In practice, this
means the House of Commons and the House of Lords; the King’s role is limited to granting ‘royal
assent’ to new laws. As you will see, it is the UK’s legislature – Parliament – which is the sovereign body in the state.
8
Q
The Executive
A
The executive: This is the body or bodies which formulate and implement policy within the law. In the UK, the executive consists of the Prime Minister and Cabinet, the various government
departments, a politically neutral civil service, and other bodies carrying out government
functions at the local level, ie local authorities or ‘councils’.
9
Q
The Judiciary
A
The judiciary: This is the body of judges of all levels of seniority, who are responsible for the
enforcement of criminal and civil law and the adjudication of disputes between individuals, as well as between individuals and the state.
10
Q
1.5 ‘That set of rules…’
A
What ‘set of rules’ is Dicey referring to in the UK context?
That question is not straightforward because the UK – unlike the United States, for instance – does not have a constitution completely contained in a single document or set of documents. Nevertheless, the UK does have a body of rules – both written and unwritten – which allocate and regulate the functions of the state. These rules come from a number of sources.
Nature of constitution:
* It is incorrect, therefore, to say that the UK ‘has no written constitution’.
* A more accurate statement is that the constitution of the UK is ‘uncodified’ in a single
document.
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Q
1.6 Where do our constitutional rules come from?
A
1) Legislation
2) Case Law
3) Constitutional Conventions
12
Q
1.7 Constitutional legislation
A
Acts of Parliament are the primary source of constitutional law in the UK. However, not all Acts of Parliament are constitutional – this classification depends entirely on the subject matter of the legislation
13
Q
In Thoburn v Sunderland City Council [2002] 3 W.L.R 247 (p62)
Laws LJ:
A
[W]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and
‘constitutional’ statutes […] in my opinion a constitutional statute is one which (a) conditions the legal relationship between the citizen and the state in some general, overarching manner and (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.
He went on to list some examples you will be familiar with:
* The Magna Carta 1215
* The Bill of Rights 1689
* The Human Rights Act 1998
14
Q
1.8 Case law
A
Many principles of constitutional law (specifically, the rights of citizens in the face of action by the state) have originated in the courts through the creation of common law.
15
Q
Key case: Entick v Carrington (1765) 19 St Tr 1029
A
Entick, who was suspected of writing seditious, anti-government pamphlets, had his property searched by agents of the King ‘with force and arms’. Entick sued the agents for trespass. The agents’ defence was that they acted on the authority of a warrant from Lord Halifax, one of the King’s Ministers.
16
Q
Trial Judges
A
The trial judge was Lord Camden, Chief Justice of the Common Pleas, who found for Entick,
holding that Lord Halifax had no recognised right under statute or case precedent to issue a
search warrant. This judgment established the fundamental constitutional rule that the state cannot exercise power unless that power is expressly authorised by law.
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Q
1.9 Constitutional conventions
A
Conventions are an important feature of the constitutional mix in the UK. They are rules about the conduct of government which fall short of being enforceable laws but are still agreed upon and
are intended to be respected.
Conventions can be described as:
* Informal rules of political practice
* Developed in an evolutionary way, according to the political standards of the time
* Without any clear source in legislation or case law
An example is that the King does not refuse royal assent to Bills of Parliament once they have
passed the House of Commons and the House of Lords.
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Q
1.10 Flexibility in the constitution
Not codified
A
As the UK constitution is not codified and has evolved over time, it has the capacity to continue to change and evolve without – in most cases – recourse to any special legislative procedure. All that is potentially required for a significant change in constitutional arrangements is an Act of Parliament.
19
Q
Entrenched constitution
A
In contrast, in an ‘entrenched’ constitution, the constitution is the highest form of law.
Amendment of the constitution is deliberately made harder than amendment of standard law.
20
Q
Constitutional amendments
A
In the United States, for instance, constitutional amendments must be passed by a two-thirds
majority in both houses of Congress (the legislature), and be subsequently ratified by three
quarters of the individual states. (This represents a particularly heavily entrenched constitution.
Many other countries have forms of entrenchment of their ‘rulebook’ but not necessarily to the same extent.)
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Q
Advantage & Disadvantage of an entrenched constitution
A
The advantage of an entrenched constitution is certainty and greater constitutional stability. The disadvantage can be rigidity and constitutional stalemate.
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Q
1.11 Summary
A
- The UK constitution is uncodified.
- The UK constitution has evolved over centuries of political change.
- The UK constitution has the capacity to evolve without special procedure.
- Constitutional rules in the UK come from a combination of legislation, case law and
convention. - The unentrenched nature of the UK constitution means that there is a lack of certainty and
formal security for constitutional rights. - However, the UK constitution is seen to have the advantage of ‘flexibility’, meaning that it can
potentially change and adapt to social and political developments more effectively.
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Q
2 Introduction to constitutional conventions
2.1 Constitutional conventions
A
Constitutional conventions are defined in the Cabinet Manual (1st edition, 2011) as: ‘rules of
constitutional practice that are regarded as binding in operation but not in law’.
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Q
The Cabinet Manual (internal rules & proceedures)
A
The Cabinet Manual is a ‘guide to laws, conventions and rules on the operation of government’. It
sets out in detail how the executive should operate.
The Cabinet Manual sets out the internal rules and procedures under which the Government
operates. For the first time the conventions determining how Government operates are set
out in one place. Codifying and publishing these sheds welcome light on how the Government
interacts with other parts of our democratic system.
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2.2 Why are conventions useful? (Flexible way to fill gaps & regulate relationships)
In the framework of an uncodified constitution, conventions are a flexible way of ‘filling in the
gaps’ and developing constitutional rules informally. They generally develop to reflect
contemporary constitutional values; they are rarely created or declared. Conventions regulate the relationships between the various institutions in the state and also create rules and standards of behaviour that are seen to be appropriate in a constitutional
system.
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Underpinning Cabinet system
They underpin the operation of the Cabinet system, defining what Ministers are responsible for,
and how they should conduct themselves. They also regulate relations between the House of
Lords and the House of Commons, between the Executive and the Monarch, and between the judiciary and the other organisations of the state.
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Constitutional conscience.
Some of the more significant conventions will now be considered. It is important to note that these are ‘rules’ that ought to be followed by the political ‘actors’. They are not enforced, as such, but are intended to be binding as a matter of constitutional conscience.
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2.2.1 Conventions relating to the legislature
* The House of Lords should defer to the House of Commons.
* The House of Lords should not reject at second reading any government legislation that has
been passed by the House of Commons and that carries out a manifesto commitment (ie a
promise to the electorate in the course of a preceding general election). This is known as the
Salisbury-Addison convention.
* Financial bills (eg relating to government expenditure and taxation) are only introduced by a
Cabinet minister in the House of Commons.
* The Westminster Parliament will not normally legislate with regard to devolved matters in
Scotland, Wales or Northern Ireland without the consent of the devolved administration (the
Sewel Convention).
* Following the parliamentary vote on military engagement in Syria in 2013 (building on the
2003 vote in relation to war in Iraq), it is arguable that a new convention has emerged: that the
House of Commons should be consulted before the government embarks on any major foreign
policy initiatives involving the use of armed forces.
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2.2.2 Conventions relating to the executive
* The monarch acts in accordance with the advice given by his Ministers (eg with regard to
proroguing Parliament).
* The monarch will not exercise his legal right to refuse royal assent to bills passed through
Parliament.
* The monarch will appoint as Prime Minister the leader of the political party which is able to
command the confidence of the House of Commons.
* The Prime Minister chooses the Cabinet Ministers (ie the heads of government departments).
* The Prime Minister and the Chancellor of the Exchequer should be MPs.
* After a vote of no confidence by the House of Commons, the government will resign, and the
Prime Minister will advise the monarch to dissolve Parliament. This will lead to a general
election. (Note that this position was impacted while the Fixed-term Parliaments Act 2011 was
in place, before its repeal in 2022.)
* The monarch must be asked for consent to proposed legislation affecting the interests of the
monarchy
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2.2.3 Conventions relating to the judiciary
* Judges should not be politically active. (In addition to offending convention, this would risk
the appearance of judicial bias and undermine the parties’ right to a fair trial.)
* Parliament must not criticise the professional conduct of judges.
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When the executive criticises the judiciary
When the executive criticises the judiciary, as exemplified by Boris Johnson, who gave his view as
PM in September 2019 that the Supreme Court’s decision that he had unlawfully prorogued
Parliament was ‘wrong’, it can be argued that this is a breach of convention, as well as a slight to
the principles of the separation of powers and the rule of law.
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2.3 Conventions and the law
We have seen that conventions are not matters of law but broader rules of political or institutional morality. They cannot be legally enforced. However, the Courts will recognise them and
acknowledge their significance as part of the broader set of rules affecting constitutional
standards.
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R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5
In the case of R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5, the Supreme Court rejected the argument that the government was legally bound to seek the consent of the Scottish Parliament before triggering Article 50 and therefore the UK’s exit from the EU. This argument was based on the fact that the Sewel convention has, since 2016, been specifically referred to in s.28(8) of the Scotland Act. However, the Supreme Court decided that s 28(8) functioned as an acknowledgement of the convention; it did not create a new rule with any legal force. The consequences of breaching a convention are played out, therefore, in the political world and not the legal one.
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2.4 Summary
* The purpose of conventions is to promote constitutional standards and principles which may
not be written down or codified.
* Law may be enforced, but conventions may not.
* Conventions relating to the legislature include that the House of Lords must defer to the House
of Commons.
* Conventions relating to the executive include that the monarch follows the advice of his
Ministers.
* Conventions relating to the judiciary include that Judges must not be politically active.
* The Courts will recognise and acknowledge conventions, but they cannot enforce them.
* The consequences of breaching a convention will occur in the political realm and not the legal
one.
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3 Parliament
What is the parliament? (Supreme legislative/law making body)
3.1 What is Parliament?
Parliament is the supreme legislative (law-making) body in the UK. Sitting at Westminster in
London, it consists of two ‘Houses’, under and within the symbolic power of the King
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3.2 What does Parliament do?
In practice, most - but not all - legislation begins with a proposal by the executive (the
government).
The key functions of Parliament as a whole are to:
* Debate and scrutinise proposed legislation
* Propose amendments to legislation
* Extract information from the executive and hold it to account on its policies and acts
* Scrutinise public expenditure and taxation
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3.3 What do MPs do?
Each MP has a ‘constituency’. This is the geographical area they were elected by the people to
represent in Westminster. MPs can represent people’s interests by, for example, asking questions
of the government in debates and voting on proposed laws.
MPs divide their time between working in the House of Commons, for their political party, and in their constituency.
Constituency work usually takes the form of a weekly ‘surgery’ – either in their constituency office
or (in more remote and inaccessible areas) in public venues such as village halls or pubs. Local people can talk to their MP about any problems or matters which concern them and MPs and their staff then make representations on their behalf.
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3.4 The House of Commons
Members of the House of Commons – ‘MPs’ – are elected by the public in a ‘general election’. Or, occasionally, via a by-election.
Under s 4 of the Dissolution and Calling of Parliament Act 2022, Parliament will be automatically
dissolved after a five-year period.
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Triggering General Elections
A general election can otherwise be triggered earlier in one of two ways:
* Following a request by the Prime Minister to the monarch for him to exercise his prerogative
power to dissolve Parliament. This is effectively a tactical dissolution, conditioned by political considerations.
* Following a ‘vote of no confidence in His Majesty’s Government’ (ie the current government)
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MPs as members of political parties
Most MPs are members of political parties. The main UK-wide political parties are the
Conservatives, the Labour Party, the Liberal Democrats and the Green Party. Following the 2019
general election, ten political parties were represented in Parliament, including a number of
regional parties from the three devolved parts of the UK. The SNP is the third largest of all the UK
parties in Westminster.
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3.5 A majority of seats
(Overall Majority)
The political party which wins an overall majority of seats in the House of Commons at a general
election will form the government. Its leader becomes the Prime Minister. ‘Overall majority’ means that the number of seats won by the winning party is more than the combined number of seats for all the other parties in the new Parliament.
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First past the post
As voting for the Westminster Parliament takes place on the traditional ‘first past the post’
electoral system, there is usually a majority for the winning party. However, if no single party wins
a majority of seats, a ‘hung Parliament’ will ensue, as in 2010.
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Form a minority government or enter a coalition
The biggest party can form a minority government or enter a coalition with another party in
order to create an overall majority. In order for the government of the day to carry out its legislative agenda effectively, it will need a
majority of seats (ie MPs who are members of the ruling party, who will vote for its legislative
proposals) in the House Commons.
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3.6 The Prime Minister
It is usually the case that the leader of the ruling political party becomes the Prime Minister when his or her party wins a general election. However, there can be a change of Prime Minister other than as a result of a general election, for example when the incumbent resigns. In that event, the Prime Minister will be elected by the members of his or her political party. A new general election is not necessary.
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Monarch Principle Advisor
The Prime Minister is the monarch’s principal adviser, chairs the Cabinet – the group of senior Ministers in charge of government departments – and has overall responsibility for the policy and operation of the government (the central executive). One of the key functions of the House of Commons is to hold the government to account. Each
Wednesday at midday, when Parliament is sitting, Prime Minister’s Question Time – PMQs takes place in the House of Commons. The Prime Minister fields questions from MPs on current political issues. It can be a rowdy and verbally combative event.
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3.7 ‘Order! Order!’ (Speaker of the House)
If you have watched PMQs and any other debates in the House of Commons, you will have seen
and heard the Speaker of the House manage and control – as far as possible – the direction and
tone of the debate. The Speaker is an MP who has been elected to the office by other MPs. By convention, the Speaker remains politically impartial and so must resign from their political party on
appointment. They still work as an MP. The Speaker has full authority to enforce the rules of behaviour in the House of Commons, for example by suspending MPs who refuse to behave appropriately.
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3.8 Parliamentary committees
Much of parliamentary work consists of sitting on committees, made up of MPs and/or members
of the House of Lords.
The purpose of these committees is to scrutinise the work of the government and examine
proposals for primary and secondary legislation. We will consider these in more detail in later materials
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Parliamentary Committees
1. Select Committees
2. Public Bill Committees
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3.9 The House of Lords
Life Peer
The House of Lords is not an elected body. It consists of nearly 800 ‘peers’.
A peer is someone with a high-ranking inherited noble title, such as a Duke, Marquess or Earl, or
anyone who has been made a peer during their lifetime, a ‘life peer’. Peerages have always been granted by the sovereign. Hereditary peerages are passed down through families. Life peerages are also granted by the monarch, on the advice of the Prime Minister - this is an example of a prerogative power.
For centuries, hereditary peers had the right to sit and vote in the House of Lords. In 1999, the House of Lords Act reduced the number of hereditary peers who may sit and vote in the House to 91. The remainder of members are life peers (granted peerage by the Sovereign, for life), and bishops. Many peers are also members of political parties. However, there are also over a hundred ‘crossbench’ peers, who are not party-political.
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3.10 Constitutional reform
Until the Constitutional Reform Act 2005, the most senior court in the UK was a part of the House
of Lords. The ‘Lords of Appeal in Ordinary’, or the ‘law Lords‘ as they were commonly known, were 12 judges appointed as members of the House of Lords to hear appeals from the lower courts, as the ‘Appellate Committee of the House of Lords’.
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House of Lords Judicial Function
In 2005 the House of Lords’ judicial function was separated from Parliament. This also marked the end of the Lord Chancellor’s combined role as head of the judiciary, a member of the executive, and Speaker of the House of Lords.
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Judicial Function transferred to the Supreme Court
In 2009, the House of Lords’ judicial function was formally transferred to the Supreme Court
(UKSC). The incumbent law Lords became the first Justices of the Supreme Court. The Supreme
Court sits in Westminster, in a building on the opposite side of Parliament Square to the Houses of Parliament. Its proceedings are live-streamed, and members of the public can attend hearings.
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3.11 Powers of the House of Lords (The Upper House)
The House of Lords is sometimes known as the ‘Upper House‘, but this does not mean it has more
power than the House of Commons. As the House of Commons is democratically elected, it is the focus of power and authority in the United Kingdom.
The House of Commons alone is responsible for making decisions on public finances, for example
legislation which changes tax law, or introduces new taxes. The Lords can consider but not block
or amend this legislation. The House of Lords may scrutinise and make amendments to legislation approved by the House of Commons. As we will see, its powers are regulated by the application of important conventions. Most types of primary legislation (Bills) require approval by the House of Lords before the Sovereign gives ‘royal assent’ and the Bills become Acts of Parliament. Government defeats in the Lords – when legislative proposals by the government are not accepted – usually result in amendments to the legislation by government, rather than wholesale defeat of the Bill.
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3.12 Summary
* Parliament is the supreme legislative body of the United Kingdom.
* Parliament can ‘make or unmake’ any law.
* The House of Commons is made up of elected Members of Parliament.
* Parliamentary committees focus on different areas of government and hold ministers to
account.
* The Constitutional Reform Act 2005 led to reorganisation of the House of Lords and
established the Supreme Court.
* The House of Lords may scrutinise and amend legislation approved by the House of Commons.
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4 The Executive
The power of the state in the United Kingdom is divided between and exercised by the three organisations of government: the executive, the legislature (Parliament) and the judiciary (Courts and Tribunals). The basic structure of the executive can be visualised as follows (but bear in mind that the monarch’s role is nominal and symbolic):
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4.2 The structure of government ‘departments’
The business of the central Executive (‘the government’) is divided into administratively distinct sections which are led by a senior politician, usually referred to as the Secretary of State, though some have special titles, notably the Chancellor of the Exchequer. Secretaries of State are members of the Cabinet.
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Ministers
Within each department or ministry, there are also several junior ministers - the second rank is normally known as a Minister of State and the third rank as a Parliamentary Under-Secretary of
State. Colloquially, all these officials are known as ‘Ministers’.
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Names are not fixed
The number, names and responsibilities of ministries are not fixed – governments can, and often do, make changes.
It is important to understand that all these Ministers are political appointees chosen by the Prime
Minister. If there is a change of government, the Ministers will leave their posts. Ministers may also change departments during the period of time their political party is in power. These changes,
also made by the Prime Minister, are known as a ‘Cabinet reshuffle’.
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Politically appointed leaders
In contrast to their politically appointed leaders, the civil servants who work in government
departments are politically neutral. They do not have to move jobs when there is a change of government.
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4.3 What government departments do
The core government departments for the purposes of constitutional law are:
* The Cabinet Office (responsible, amongst other matters, for national emergencies and
constitutional reform)
* The Foreign Office (responsible for relations with foreign states)
* The Home Office (responsible for the security of the United Kingdom and policing)
* The Ministry of Justice (responsible for the administration of the Courts and Tribunals system,
and prisons and probation)
* The Treasury (responsible for economic policy, including public spending, ie the allocation of
taxes paid by the public)
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4.4 Powers of government departments (the royal prerogative)
The powers of government departments are derived from statute (legislation which has been approved by Parliament) or the common law – usually the royal prerogative.
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Appointment of accounting officers
The internal administrative arrangements of government departments are generally made under prerogative powers, except for the appointment of accounting officers. Accounting officers are responsible for the preparation of department accounts. They are appointed by the Treasury, pursuant to the Government Resources and Accounts Act 2000. The allocation of funds to government departments requires the approval of Parliament.
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4.5 Delegation of power
An essential concept in public law is the delegation of power. This means the lawful exercise of
power, granted to a minister by legislation or under common law, to a government official of lower
rank working in the same department.
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Delegation to passport officers
Consider the granting of passports. This is a prerogative power of the Crown, exercised by the Secretary of State for the Home Department (the ‘Home Office’). However, the Secretary of State could not personally review and decide all passport applications. Therefore, this power is delegated to passport officers.
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The Secretary of State
When reading legislation, which gives powers to, and imposes duties upon, government ministers, you will see wording like this: ‘the Secretary of state shall […]’ or ‘the Secretary of State must […]’. Bear in mind that in practice, the power or duty will be exercised be imposed on an official of lower rank, identified in a ‘scheme of delegation’.
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4.6 Delegation - the ‘Carltona principle’
The principle that the actions of government department officials are synonymous with the
actions of the Minister in charge was established in the case of Carltona Ltd v Commissioners of
Works [1943] 2 All ER 560 (CA).
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Judgement by Lord Greene
In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are so multifarious that no responsible minister could properly attend to them […] the duties imposed on ministers are normally exercised [under their authority] by responsible officials of the department. Public business could not be carried out if that were not the case. Ministers remain politically answerable to Parliament for such decisions, however.
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4.7 Limits on the power of the executive
The government can only act if it is expressly authorised, either by statute or common law, to do
so. If the government acts in excess of the powers it is given, the Administrative Court will intervene
– not of its own accord, but if a claim is started against the government. The legal mechanism by which individuals or groups, who assert that the government has acted unlawfully in this way, can make such a claim, is called ‘judicial review’
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4.8 Constitutional principles
The Crown (government) and its ministers are subject to the following constitutional principles:
* Laws may not be suspended: The government may not suspend any law without the consent of Parliament (Bill of Rights, s 1).
* Taxation: All taxes require the consent of Parliament. They must be set out in legislation.
* Habeas corpus: The restrictions imposed on the arbitrary imprisonment and punishment of
citizens remain an important limitation on government power today and can be traced back a
long way into history, including to the Magna Carta (1215).
* Freedom from arrest: There are no longer any common law powers exercisable by the
monarch or by government ministers, to issue warrants of search or arrest.
* Impeachment: Parliament can inquire into alleged illegal acts by ministers (though this power
has very seldom been exercised).
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4.9 Local government
Local authorities are responsible for the implementation of central government policies at the
local level, eg for the collection of council tax, the maintenance of highways, and decisions
about building new housing, as well as applying their own local policies. In the context of your studies, and in practice, you should be aware that the key constitutional principles limiting the power of central government also apply to local government, and the exercise of local government power is reviewable by the Administrative Court in the same way.
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4.10 Summary
* The central Executive means the government, ie the departments, run by the Ministers of State,
which create and implement government policy. The head of the Executive is the Prime
Minister.
* Central government in the UK is divided into departments (‘ministries’), each responsible for a discrete area or areas of government policy and implementation.
* The powers of government departments include the power to create and implement secondary
legislation.
* Delegation of power within the Executive fulfils an important function: the Secretary of State
cannot personally carry out all the functions of his or her ministry.
* Constitutional principles applicable to the Executive include that it must act with respect for the law and within the law.
* The role of local government is, in part, to oversee the implementation of central government
policy in local areas.
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5. The Judiciary
5.1 The role of the Judiciary
The judiciary – the courts and tribunals – is one of the three bodies of state or ‘branches’ of
government’.
The role of the judiciary can be summarised as follows:
* To determine the outcome of legal disputes between individuals (natural or legal persons).
* To decide the appropriate punishment in criminal cases.
* To interpret the proper meaning of legislation.
* In the case of the Administrative Court, to determine, through judicial review, whether the
government has lawfully exercised its powers. The Administrative Court is where most public
law claims begin. (Appeals lie to the Court of Appeal (Civil Division), and ultimately the
Supreme Court.)
This last function, judicial review of the government’s exercise of its powers, will be one of the main
focuses of your studies in Public Law.
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5.2 Constitutional Reform Act 2005
The Constitutional Reform Act (CRA) 2005 was designed to address concerns that the separation of powers between the judiciary and the other two bodies of state was blurred.
One example of this was that, prior to the 2005 Act, the Lord Chancellor was the head of the
judiciary, a government minister and also the presiding officer in the chamber of the House of
Lords (the equivalent of the Speaker). Until the 1990s he also acted as a senior judge as one of the ‘law lords.’
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Changes brought by the 2005 Act
The 2005 Act brought in the following key changes:
* Reformed the office of the Lord Chancellor, so that judicial functions have largely been taken
over by the Lord Chief Justice.
* Established the Supreme Court, as a separate entity from the Appellate Committee of the
House of Lords (which had previously been the most senior UK court).
* Created the Judicial Appointments Commission for the appointment of judges. Prior to this, the Queen had appointed judges on the ‘advice’ of the Lord Chancellor.
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5.3 The Lord Chancellor
The King appoints the Lord Chancellor on the advice of the Prime Minister. There are statutory restrictions on who the PM can recommend for appointment. The Lord Chancellor is now responsible for the administration of the court system, and also holds the post of Secretary of State for Justice although this dual role has been subject to some criticism.
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5.3 The Lord Chancellor (statutory safeguards)
There are statutory safeguards to prevent excessive influence by the Lord Chancellor over judicial
decision-making:
* The Lord Chancellor has a legal duty to uphold the independence of the judiciary (s 3(1) CRA
2005).
* The Lord Chancellor must not seek to influence particular judicial decisions through any
special access to the judiciary (s 3(4) CRA).
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5.4 The Lord Chief Justice
The Lord Chief Justice is appointed by a special panel convened by the Judicial Appointments Commission. Appointments are generally made from the ranks of current Court of Appeal judges. The Lord Chief Justice is the Head of the Judiciary of England and Wales, and the President of the Courts of England and Wales.
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Key Responsibilities of Lord Chief Justice
* Representing the views of the judiciary of England and Wales to Parliament and government.
* The welfare, training and guidance of the judiciary of England and Wales. (The provision of resources for the judiciary are allotted by the Lord Chancellor.)
* The deployment of judges and the allocation of work in courts in England and Wales.
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5.5 The judiciary – constitutional principles
Sworn into two oaths
When judges are ‘sworn in’ (the formal ceremony that takes place before they can begin work as
a judge), they swear two oaths.
The first oath is allegiance to the sovereign.
The second is the ‘judicial oath’, which contains the following words: ‘I will do right by all manner
of people after the laws and usages of this realm, without fear or favour, affection or ill will.’
The judicial oath references two key constitutional principles:
* Judgment according to applicable law (‘after the laws and usages of this realm’)
* Impartial and independent judgement (‘without fear or favour […]’)
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5.6 ‘Justiciability’
There are some government acts (usually carried out under the exercise of prerogative power)
which have long been seen as non-justiciable, meaning that the courts accept that they have no
or very limited jurisdiction to decide whether the act is lawful. The reason for non-justiciability is
that the question is a purely political one, and so not suitable for determination by judges.
However, all government powers are legally finite: one of the courts’ key roles is to determine
where the boundaries of power lie.
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Cherry and Miller (No 2)
[2019] UKSC 41.
The issue of justiciability was the first question for the Supreme Court in Cherry and Miller (No 2)
[2019] UKSC 41. The Court rejected the government’s argument that the prorogation of Parliament was a purely political issue and therefore not justiciable.
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5.7 Judges as guardians of the constitution?
There is no separate and special ‘constitutional court’ in the UK, and questions of constitutional
law are determined in the ‘ordinary’ courts – ultimately, the Supreme Court. In a speech given on 9 November 2016, the then President of the Supreme Court, Lady Hale, said that: ‘we [the Supreme Court] have definitely become the guardians of the United Kingdom constitution’.
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Lady Hale's Three Reasons
Lady Hale gave three reasons for this:
* The Justices rule on the validity of laws passed by the devolved legislatures in Scotland, Wales
and Northern Ireland.
* They restrict the government to the exercise of powers within the limits that Parliament has set:
‘this is nothing new. The higher courts have been doing this for centuries […] in this we see
ourselves as servants of the sovereign legislature’.
* They ‘protect the fundamental rights of individuals against encroachment by the State’.
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5.8 Summary
* The constitutional role of the judiciary is to interpret the will of Parliament expressed in
legislation, interpret and apply case law, and restrain unlawful acts – including those of the
Executive.
* The role of the Lord Chancellor is to administer the courts and tribunals system.
* The Lord Chief Justice has been the head of the judiciary since the CRA 2005.
* The key constitutional principles applicable to the judiciary are the administration of justice in
accordance with the law and complete impartiality.
* The concept of ‘justiciability’ relates to the self-limiting acknowledgment by the judiciary that purely political matters may be beyond its jurisdiction.
* The UK Supreme Court does not play a formal role as a constitutional court but is arguably developing in this direction
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6. Devolution
6.1 The ‘United Kingdom’
The United Kingdom (UK) now consists of England, Wales, Scotland and Northern Ireland. This was not always the case.
England and Wales have been united for much longer than the other territories. Under the Laws in Wales Acts of 1535-1542, the administration of Welsh territories was fully incorporated into the Kingdom of England
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6.2 What is devolution?
The UK Parliament, sitting at Westminster, is the principal legislative authority in the UK.
’Devolution’ refers to the grant by the UK Parliament of legislative powers to the ‘devolved’
legislatures and administrations (executives).
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6.3 What is devolved legislation?
Devolved legislation is the legislation produced by the three devolved Parliaments or Assemblies of Scotland, Wales, and Northern Ireland. It has the characteristics of primary legislation produced by the Westminster Parliament, but it cannot be created without the enabling powers of an Act of the UK Parliament.
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6.4 What are ‘devolved matters’ and ‘reserved matters’?
Devolved matters are the areas of government where decision-making has been delegated by the UK Parliament to the relevant devolved administration.
For example, education is a devolved matter in Scotland, as is the environment. This means
Scotland can make its own laws on those areas (amongst many others). However, all devolved
laws are still subject to review by the Supreme Court, which also has the power to determine
disputes over jurisdiction between the devolved administrations and Westminster
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Reserved Matters
Reserved matters are decisions still taken in Westminster, even though they have effect in
Scotland, Wales and Northern Ireland. Immigration, defence and foreign policy are examples of
reserved matters. The responsibility for fiscal policy and public expenditure across the whole of the UK also belongs
to HM Treasury, ie central government at Westminster, though the Scottish and Welsh
governments have had a degree of control over raising revenue in recent years.
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6.5 Why devolve?
The process of devolution is designed to decentralise government power, and bring it closer to the people governed, so that local factors are better understood and given more prominence in decision-making.
It also reflects the importance of nationalist opinion in the constituent countries of the United Kingdom, evident in the strong performance of nationalist political parties, notably in Scotland and Northern Ireland.
Devolution was introduced following public referendums in Scotland, Wales and Northern Ireland in 1997 and 1998 which endorsed the initiative.
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6.6 Devolution in Scotland
The general rule is that Acts of (the UK) Parliament extend to Scotland only if they deal with nondevolved, ‘reserved’ matters, such as immigration. Section 28(8) of the Scotland Act 1998 recognises that the UK Parliament will ‘not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’.
This consent to legislate on a devolved matter is indicated by way of a ‘Legislative Consent
Motion’ in the devolved Parliament. Section 28(8) represents the statutory recognition of the Sewel Convention, but it is important to
note that it does not give binding legal effect to it, as confirmed by the Supreme Court in Miller
(No 1) [2017] UKSC 5.
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Under Section 28(7)
Under s 28(7) of the Scotland Act, it is explicitly stated that the power of the Scottish Parliament
to pass Acts: ‘does not affect the power of the Parliament of the United Kingdom to make laws for
Scotland’. Ultimately, therefore, a lack of consent from the devolved parliament can be overridden
at Westminster.
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6.7 Devolution in Wales
The Wales Act 2017 extended the powers devolved to Wales under the Government of Wales Act
2006 (GOWA). Like Scotland, Welsh government is now based on a ‘reserved matters’ model.
Matters reserved to the UK Government are now listed in Schedule 7A to the GOWA 2006. The general rule is that Acts of (the UK) Parliament will only apply to Wales if they deal with reserved matters. The Sewel Convention is also reflected in the GOWA (s 107(6)). The consent of the Senedd (known until 2020 as the National Assembly for Wales) is sought by way of Legislative Consent Motion, in the same way as in Scotland and Northern Ireland.
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Section 107(5)
However, s 107(5) makes it clear that the power of the Senedd to make Acts: ‘does not affect the
power of the United Kingdom to make laws for Wales’ – in other words, the equivalent of s 28(7) of
the Scotland Act.
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6.8 Devolution in Northern Ireland
Stormont
The devolved institutions of government in Northern Ireland were constituted by the Northern
Ireland Act 1998. The Northern Ireland Assembly is the devolved legislature. It is a unicameral body of 90 members who are democratically elected. It is often referred to as ‘Stormont’, because it sits at the Stormont Parliament Buildings near Belfast.
The Assembly selects the ministers of the Northern Ireland Executive, which is based on a powersharing model, headed by a First Minister and Deputy First Minister from the two largest parties.
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Sewel Convention Application to Northern Ireland
The Sewel Convention also applies to Northern Ireland: an Act of the Westminster Parliament on a devolved matter should only extend to Northern Ireland if the Assembly has passed a legislative consent motion. However, s 5(6) of the Northern Ireland Act provides that the UK Parliament may still legislate on devolved matters without such consent.
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6.9 Legislative conflict – role of the Supreme Court
The Supreme Court is the final court of appeal for civil cases in the UK. It also has jurisdiction
under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act
2006 (as amended by the Wales Act 2017), to resolve questions of whether legislation by the
devolved administrations goes beyond the scope of their legislative competence.
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Key constitutional roles of the Supreme Court
Take national security as an example. This is a reserved matter across the devolved legislations. In the highly improbable event that, say, the Senedd decided to legislate on a national security matter, this legislation would not be treated as law. That is because the Senedd is not, under the
terms of the Government of Wales Act 2006 (as amended by the Wales Act 2017) permitted to
legislate in this area
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6.10 Reserved matters - analysis
The question of the legal effect of Acts of the UK Parliament/devolved legislation can be broken
down like this:
(a) Which of the devolved administrations is in issue? This will tell you which of the Acts of
Parliament to look at.
(b) What matter or area does the legislation concern? (eg roads, railways, housing)
(c) Is that matter listed as a ‘reserved matter’ in the relevant Act? Reserved matters will be listed
in one of the Schedules to the relevant Act. If it is not explicitly listed as a ‘reserved matter’,
could it be interpreted as falling within a reserved matter?
(d) If so, then legislation passed by the UK Parliament will have legal effect in the devolved
administration. Conversely, any legislation passed by the devolved administration will not
have legal effect.
(e) If the matter is not deemed as a ‘reserved matter’, legislation passed by the UK Parliament
will still have legal effect in the devolved administration. However, the convention is that the consent of the devolved administration should have been sought and indicated by way of a
Legislative Consent Motion.
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6.11 Summary
* The United Kingdom consists of England, Wales, Scotland and Northern Ireland.
* The three devolved administrations are Wales, Scotland and Northern Ireland.
* The responsibility for fiscal policy and public expenditure across the whole of the UK belongs to HM Treasury, but devolved administrations set their own budgets.
* ‘Reserved matters’ are areas of government over which decisions are still taken by Parliament
at Westminster, even though they have effect in Scotland, Wales and Northern Ireland.
* The UK Parliament may still legislate on devolved matters, though should firstly obtain the
consent of the relevant devolved parliament/assembly.
* The Supreme Court is responsible for determining questions of law and jurisdiction relating to devolution.
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7. The Monarch
7.1 The constitutional role of the monarch
Since the ‘Union of the Crowns’ between England and Scotland in 1603, there have been 19 British
monarchs. Over the span of more than 400 years, and notably since the ‘Glorious Revolution’ of 1688, the UK’s constitutional system has evolved from an absolute monarchy to a democratic,
constitutional monarchy.
Absolute monarchy: Supreme authority that is unrestricted by law and customs
Constitutional Monarchy: Authority derives from and is limited by constitutional law
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7.2 The Monarch’s current role
However, a significant feature of the UK constitution is that the activities of government are still
carried out in the name of the monarch. This is why the Executive (the government) is often still referred to as ‘the Crown‘. The UK’s Executive is formally referred to as ‘His Majesty’s Government‘.
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Monarch’s remaining personal powers , limited by constitutional convention
* Appointing the Prime Minister
* Dissolving Parliament in some circumstances
* Giving ‘Royal Assent’ to Acts of Parliament
The law-making power of Parliament is described as being vested in the ‘King-in-Parliament’.
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7.3 ‘The Crown’
In your study of public law, and in practice, you will frequently come across this term.
For example, the names of criminal cases are written like this: R v Smith and said like this: ‘the Crown against Smith’.
The names of modern judicial review cases are written like this: R (on the application of Smith) v
The Secretary of State […] and said like this: ‘the Crown on the application of […]’. The ‘R’ stands
for ‘Rex’ (the King).
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Criminal prosecutions are started by the Crown Prosecution Service.
Similarly, judicial review proceedings are brought in the name of the Crown, but in reality they are started by individuals. This reflects the fact that in a judicial review, the court is dealing with a public law matter, ie a legal problem that affects society beyond the interests of the individual. You will also hear Judges referred to as ‘His Majesty’s judges’, although the King does not personally appoint them.
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7.4 The Royal Prerogative
The royal prerogative or ‘Crown prerogative’ refers to the powers that were historically vested in
the monarch since the days of absolutist monarchy (pre-1688). They are not statutory powers
and so have never been created or approved by Parliament. (You will look at this topic in more
detail in your separate materials on the Royal Prerogative.)
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Significant feature of the UK Constitution
It is a significant feature of the UK constitution that such powers still form part of the legal
authority of the executive, even if they are no longer used in practice by the monarch on his own initiative. Today, they are still legitimate powers but are only exercised on the advice of the Prime Minister or other senior government ministers.
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Remaining prerogative powers include:
Some remaining prerogative powers include:
* Summoning, proroguing and dissolving Parliament
* Appointing and dismissing government ministers
* Mobilising the armed forces, including the declaration of war
* Negotiating treaties
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Key case: Miller v the Prime Minister [2019] UKSC 41
Key facts
In September 2019, in the wider context of the imminent departure of the UK from the European Union, Gina Miller and others brought a legal challenge to the advice given to the late Queen by the then Prime Minister, Boris Johnson, to prorogue Parliament. As a result of the Prime Minister’s advice, the Queen prorogued Parliament for a period of five
weeks
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Supreme Court decision of unlawfulness
The Supreme Court decided that the Prime Minister’s advice was unlawful because it had
the effect of: frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision
of the executive […] This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances […] the effect upon the fundamentals of our democracy was extreme.
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Judgement of critical importance
This judgment is of critical importance for many reasons. In this context it illustrates both the
convention that the monarch acts only on the Prime Minister’s advice, and that the exercise of
prerogative powers by the Executive is not immune from challenge in the courts.
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7.5 Summary
* Since 1688 the UK has evolved from an absolutist monarchy to today’s democratic,
constitutional monarchy.
* The activities of government are all carried out in the name of the monarch.
* The work of the judiciary is also carried out in the name of the monarch (‘the Crown’), and
criminal cases are prosecuted in the Crown’s name.
* It is significant that the residual powers of the monarchy under its ‘prerogative’ are still a
source of legal authority for the UK government.
* The case of Miller v The Prime Minister concerned the prerogative power to prorogue
Parliament and illustrated that the exercise of such powers are subject to the scrutiny of the
courts.
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