constitutional fundamentals Flashcards
(35 cards)
what are the two main ideas of a constitution?
idea that it is a rulebook, and idea that it creates systems of government
what are the general principles of constitutions?
they create the executive, judiciary and legislative; and they also contain statements of people’s basic rights and freedoms
does the UK have a constitution?
not in the written sense - Cabinet Office’s Cabinet Manual (2011)
- “The UK does not have a codified constitution”
- “Constitutional order has evolved over time and continues to do so”
- “Consists of various institutions, statutes, judicial decisions, principles and practices that are commonly understood as constitutional”
labelled as the ‘dispersed constitutional rulebook’
what are the ‘4 distinguishable senses’ dr geoffrey marshall talks about re: understanding the term ‘constitution’?
- “Combination of legal and non-legal (or conventional) rules that currently provide the framework of government and regulate the behavior of major political actors”
- “Single instrument promulgated at a particular point in time and adopted by some generally agreed authorization procedure under the title ‘constitution’”
- “Totality of legal rules” – doesn’t matter whether contained in “statutes, secondary legislation, domestic judicial decisions or binding international instruments or judicial decisions” as long as it “affects the working of government”
- “List of statutes/instruments that have an entrenched status and can be amended or repealed only by a special procedure”
the UK has a constitution in the 1st and 3rd senses
why does professor anthony king argue that it doesn’t matter whether there’s a ‘single instrument’ (term that dr geoffrey marshall uses)
he argues that constitutions are “never written down” and, if they are, only “in principle”; also makes a distinction between “small-c constitutions” and “capital-c Constitutions”
- Constitutions = written documents, but not coextensive with “all of a country’s most important rules regulating the relations between different parts of government and those between the government and the people”
- Constitutions (small-c): “set of important rules that regulate the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country”
what are the sources of rules forming the constitutional framework in the UK?
- Cabinet Manual
- statute book
- judicial decisions
- constitutional conventions
- EU law
- international law
what is the Cabinet Manual?
its preface states that it “records rules and practices, but is not intended to be a source of any rule”
why was the reaction from both the House of Lords and House of Commons lukewarm? (although the latter more complimentary than the former)
House of Lords Constitutional Committee, 12th Report (2010-2012)
- “Limited value and relevance”
- “Should only seek to describe existing rules and practices; it should not be endorsed by the Cabinet nor formally approved by Parliament; and it must be entirely accurate and properly sourced and referenced”
House of Commons Political and Constitutional Reform Committee, Constitutional Implications of the Cabinet Manual, 6th Report (2010-2012)
- “There is scope for the constitutional impact of the Cabinet Manual to be greater than this. This becomes particularly true where the Cabinet Manual’s con- tent extends beyond matters that are purely for the Executive”
- “not a written constitution. It has, however, considerable overlap in content with what might be expected of a constitution”
what is the statute book?
- All the Acts of Parliament that have received Royal Assent (final stage of legislation-making process in Parliament) and which are waiting to be brought into force/are in force
- Contains several Acts of Parliament that can be described as ‘constitutional’ in the sense used by Prof King above
what is the problem with the statute book?
doesn’t provide a complete set of rules, but only those that have been enacted by Parliament
- Won’t show rules in other forms e.g. conventions or general principles
- There have been occasional references in Acts of Parliament to constitutional conventions, e.g. s. 1 of the Health and Social Care Act 2012 alludes to individual ministerial responsibility (‘The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England’) and to broad constitutional principles, e.g. s. 1 of the Constitutional Reform Act 2005 refers to the principle of the rule of law.
how is statutory interpretation related to the constitution?
Making definitive rulings on the meaning of provisions in Acts of Parliament and other legislation
Orthodox starting point: judges are seeking to find and give effect to ‘the intention of Parliament’ as expressed in the words of the Act in question
what is the significance of Pepper (HM Inspector of Taxes) v Hart (1993) AC 593?
Landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege
what are the facts of Pepper v Hart?
Hart and nine others were teachers at Malvern College, where from 1983 to 1986 they took advantage of a “concessionary fee” scheme, which allowed their children to be educated at rates one fifth of those paid by other pupils. They disputed the amount of tax they had to pay under the 1976 Finance Act, Section 63 of which said that:
The cash equivalent of any benefit chargeable to tax … is an amount equal to the cost equivalent of the benefit, less so much (if any) of it as is made good by the employee to those providing the benefit … the cost of a benefit is the amount of any expense incurred in or in connection with its provision, and (here and in those subsections) includes a proper proportion of any expense”.
The Inland Revenue, attempting to tax this benefit, argued that the “cost” of the benefit meant an average of the cost of providing it; if there were 100 pupils at a school that cost £1,000,000 a year to run, the “cost” per pupil was £10,000. Hart and his fellow teachers disputed this and argued that it was instead marginal cost, saying that other than food, stationery, laundry and similar there was no cost to the school due to the children’s presence that would not be there already.
what is meant by the ‘principle of legality’?
an Act of Parliament will not be interpreted as depriving people of common law rights except by the clearest words
- R v Secretary of State for Home Department ex parte Pierson (1998) Lord Hope “ unfairness …… as there are no statutory rules, the presumption must be that he [Secretary of State] will exercise his powers in a manner which is fair in all the circumstances.”
what are the most significant features of the common law tradition?
- No designated constitutional court separate from the main court system
- Judges not only apply rules but generate them independently of Parliament through the application of precedent (vs being confined to interpreting and applying a codified set of rules)
- Longer style of judgments containing more justification for the rulings
- Use of obiter dicta to discuss important constitutional principles (e.g. Entick v Carrington)
what is meant by ‘judicial review’?
Courts have enunciated grounds of review that may be used to question the legality of decisions by public bodies and delegated legislation
what is the orthodox position on judicial review?
that the body of case law embodies fundamental values of the constitution and, in extreme situations, judges would have the constitutional duty to set aside an Act of Parliament that undermined democracy or people’s basic rights in some profound way
what is sir john law’s view (in “law and democracy” 1995) on judicial review?
runs contrary to orthordox position
- Argues effective rights can only be accorded by means of compulsory law
- Medium of rights will then be the power of rule, which (if misused) can subvert rights
- From this, it is a natural conclusion that the constitution must guarantee by positive law such rights as that of freedom of expression as its credentials as a medium of honest rules will be undermined otherwise
- But this requires an appeal to a “higher-order law” which “cannot be abrogated as other laws can” by the passage of a statute promoted by a government with the necessary majority in Parliament (ensuring legitimacy?)
what are constitutional conventions?
“Rules of constitutional practice that are regarded as binding in operation but not in law”
how does one identify rules in constitutional conventions?
Sir Ivor Jennings, The Law and the Constitution” (1959)
- “The fact that an authority has always behaved in a certain way is not warrant for saying that it ought to behave in that way, but if the authority itself and those connected with it believe they ought to do so, then the convention exists” –> customary law
- 3 part test
- What are the precedents?
- Did the actors in the precedents believe they were bound by the rule?
- Is there a good reason for the rule
are conventions different from laws?
Dicey, “Introduction to the Study of the Law of the Constitution (1885)
Laws ‘in the strictest sense’ vs constitutional conventions: role of the courts in relation to enforcement of failures to comply with the rules differ
is it helpful/possible to draw a distinction between laws and conventions?
- Jennings
- “there is not distinction of substance or nature”, though it “is important from the technical angle”
- Barber, ‘Laws and constitutional conventions’ (2009)
- Difference is one of degree – spectrum gradated in terms of the formalization of rules
- “Conventions can become laws through judicial intervention, and conventions can ‘crystallise’ into laws over time by becoming increasingly formalized”
- E.g. Ministerial Code
what is dicey’s and jenning’s veiw on enforcement of conventions?
- Dicey: courts would not enforce compliance directly, but violation of conventions leads inexorably to breach of the law (which courts can enforce)
- Jennings: many instances proving otherwise – there are circumstances in which the courts can, and should, be prepared to enforce constitutional rules directly
why did Allan feel that the orthodox position on conventions should be challenged?
it obscures the important sense in which constitutional morality is an important sense of law
Background: Federal Government of Canada wanted to repatriate the Canadian constitution, and the basis of the constitution was an Act of the UK Parliament. Those opposed to the change argued that any amendment to the constitutional system couldn’t occur without the consent of the provinces of Canada
- Majority of the court accepted there was such a convention but held that the powers of the the two Canadian Houses of Parliament were unlimited as a matter of law
- Argued that there is no reason why legal remedies shouldn’t be granted in favour of convention grounded firmly in principle
- Authority: Attorney-General v Jonathan Cape Ltd (1976) QB 752
- Distinction between source of law (as law) and source of law governing interpretation of statute/influencing development
- Dichotomising it neglects the sense in which recognition of convention by the courts has a normative aspect, and imports an application of political principle
- Therefore the traditional orthodoxy should be challenged as it obscures the important sense in which constitutional morality is an important sense of law
