Lecture 1 Flashcards
(28 cards)
What is a constitution?
‘… the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.’
(HOL Select Committee on the Constitution
‘Reviewing the Constitution; terms of reference and methods of working*, First Report, Session 2001-02, HL Paper 11, para 20.)
Arguably human rights is missing from this definition.
What does a constitution do?
- Institutionalisation: creates institutions and allocates power
- Accountability: for abuse of power; checks and balances
- Legitimating function: makes respectable the use of power. Respect leads to obedience
Meaning of ‘Constitutive Function’
‘A constitution constitutes the state, it establishes, empowers, and in establishing and empowering, limits state institutions’
(Barber (The UK Constitution, 12-13))
How does the constitution ‘contain moral disagreement’?
Partly through compulsion or state coercion, but also partly through persuasion of the legitimacy of the state’s constitutional processes in generating legal and political output. A necessary condition of this legitimacy is that citizens are willing to accept the state’s constitutional structure, i.e. even in the face of disagreement with its processes and outcomes.
(Barber (The UK Constitution, 12-13))
Distinction between process and outcome. People may have natural disagreement about outcomes but respect process and having chance to participate in it so willing to accept outcome. Prevents disagreement turning into violence.
Functions of the UK Constitution according to Barber (2)
- Constitutive Function
- Contain Moral Disagreement
Types of Consitutions
- Codified vs uncodified
- Entrenchment vs no entrenchment
- Bill of rights vs no bill of rights
- Direct constitutional review vs no direct constitutional review
- Legal constitution vs political constitution
- Specialised constitutional review vs general constitutional review
- Eternity clauses vs no eternity clauses
What does entrenchment mean?
‘ A legal rule is entrenched when it is rendered more difficult to change than other rules generated from the same legal source.’ (Barber, UK Const, 63)
What is the different between Constitution and constitution?
Constitution:
A capital ‘c’ Constitution is a single document, or a set of documents, that presents itself as the foundational law of the state. Allied to this, there are a number of secondary features that are commonly, but not invariably, possessed by a capital c Constitution. The document normally establishes and empowers the principal institutions of the state and, in a federal system, delineates the broad competence of the national-level institutions and their regional counterparts. It is normally judicially enforceable, in whole or in part, with the courts making use of the document to determine institutions’ constitutional powers. As part of this process, the courts often possess the power of strong-form judicial review; that is, the judges have the capacity to strike down statutes that violate the Constitution:
constitution:
-A small ‘c’ constitution, in contrast, consists of those rules that constitute the state. All states must possess a small ‘C’ constitution, but not all need possess a capital ‘c’ Constitution. The small c constitution includes both legal and non-legal rules.
- In states that possess a written Constitution, there is an un avoidable gap between the Constitution and the constitution; the written Constitution is never identical with its small ‘é’ counter-part. Sometimes, this is because the Constitution only includes a subset of the rules of the state.
- There are many small ‘ constitutional rules in the American system that are outside of the Constitution. These range from the grand, such as the constitutions of the states, to the modest, such as the administrative rules governing the discretion of civil servants.
(Barber (The UK Constitution, 9-11) )
Is the constitution (small c) fully contained in the Constitution, where there is one?
No. Accordingly, the law of the constitution (constitutional law) is not exhausted by the Constitution.
‘On the day it is enacted a new constitution is wholly written law. But that day does not last.
As soon as ripe disputes begin to arise that concern the meaning of constitutional provisions, written constitutional law inevitably needs to be filled out with case law and/or customary law. What is written in the constitution needs to be invested with more determinate meaning, and by and large this has to be done at the point of its authoritative application, principally by judges’
‘Any constitution that provides for authoritative adjudication regarding its own application cannot but be to some extent a living constitution; ie cannot but contain less law at its inception than it comes to contain later’.
‘the law of the constitution (or constitutional law) should not be thought of as identical with the constitution itself…’
(Gardner, ‘Can there be a written constitution?’ (reprinted in Law as a Leap of Faith, OUP, 2012, at 119 and 121).)
What is public law?
THE LAW OF A COUNTRY THAT REGULATES THE EXERCISE OF PUBLIC POWER, THE RELATIONSHIP BETWEEN THE STATE AND THE PEOPLE, AND BETWEEN THE INSTITUTIONS OF THE STATE
concerned with the state - its *
structures, the actions and interactions of its institutions and people who operate them, the principles and mechanisms on which it runs - and its relationship with other entities and individuals inside
and outside the state.’
(Mark Elliot and David Feldman (eds), The Cambridge Companion to Public Law (Cambridge University Press
2015) 1)
What is public law concerned with?
• It is not private law e.g. contract, tort
- relationships between
people and/or companies.
• Public law generally involves state institutions.
• Public law matters as it relates to the making, implementing and enforcement of the law.
• It is constitutional law [Year 1], administrative law and EU law [Year 2], and also Crime and therefore Law of Evidence).
• AND, also, CRUCIALLY: the HRA 1998
What are two basic types of legal relationships public law is concerned with?
• Horizontal - the relationship between the different institutions of State: i.e. the executive, legislature and the judiciary (also the monarch). [e.g. Separation of powers; check and balances; the Rule of Law]
• Vertical - the relationship between the institutions of State and the citizens: e.g. judicial review/HRA.
Private vs Public law
Private law: Law regulates relationship between individuals
E.g. contract and tort issues; employment and company law; land; and equity and trust matters
Public law: Law regulates relationship between state/state bodies had the individual.
E.g. human rights matters; immigration and citizenship; criminal law; planning law; and licensing law
(Wembley and Samuel’s, Complete Public Law, at 4)
Principles of Public Law (7)
- The UK’s Unwritten Constitution
- The Rule of Law
- Separation of powers
- Representative Democracy
- Parliamentary Sovereignty
- Limited and Responsible Government
- Judicial Review and Executive Action
Topics on the borders of Public Law
Public International Law
International Human Rights
Private Power
Transnational Corporations
What isn’t public law but more politics?
Cons. Law isn’t necessarily the study of:
Party politics
Political power
Sociology
Political morality
Public history
Political economy
The nature and politics of human rights
Definitions of Constitutional vs Administrative Law
• Constitutional law is ‘the law that relates to the structure or framework of the state, and the political and judicial institutions of the state.’
• Administrative law is ‘the body of law that deals with the workings of the state, along with the statutory and common law powers and duties of government departments, local authorities, and public bodies and public authorities, which assist in the everyday life of the country.’
(Webley and Samuels, Complete Public Law, at 6.)
Difference between Constitutional and Administrative Law
‘Administrative law regulates institutions whose powers are delegated. Constitutional law regulates those that do the delegating; i.e. institutions whose powers are not delegated but are, as it is sometimes put, inherent or original.
(Gardner, ‘Can there be a written constitution?’ at 98).)
How does the UK’s Constitution fit into the different types?
- Some sources written e.g. Magna Carta or the Act or Settlement, but no single code or document.
- Some unwritten and political (e.g. some constitutional conventions).
- Some written legal rules (e.g. HRA)
- Avoid written/unwritten distinction. Think codified v codified instead.
- No entrenchment; therefore, no eternity clauses
- No constitutional supremacy
- No constitutional review
Is the British Constitution written?
‘The UK’s lack of a Constitution has led some to describe it as ‘unwritten’, and it certainly has no document that can parallel America’s Constitution. But, as with all small ‘c’ constitutions, large parts of the UK constitution take written form. Many constitutional rules are found in statutes. Some, such as the HRA 1998 and the devolution statutes, play a crucial role in structuring the state… Moving beyond statutes, other elements of the UK constitution also have written sources. The common law, for example, consists of the decisions of judges… Perhaps the most obvious example of a non-written set of rules are constitutional conventions… These are non-legal rules, grounded in the practices and beliefs of those who work within and around constitutional institutions. But even here, some of these conventions are written. The upshot of this discussion is that we should take care not to overestimate the differences between written and unwritten constitutions: large parts of the UK constitution are written, whilst large parts of the constitutions of states with a capital ‘c’ Constitution lie outside of that document’.
Barber, The UK Constitution (11-12)
Why is the British Constitution unwritten?
• Historical reason - lack of a genuine constitutional moment.
‘Other constitutions have been built; that of England has been allowed to grow.’ (Sydney Low, The Governance of England (1904))
• Conceptual reason - if Parliament is sovereign then no point in codifying constitution (as Parliament can do what it likes, when it likes, how it likes –including changing the constitution). One purpose of a constitution is to constrain the legislature; but that’s not the case of the UK constitution.
• One BIG exception? The doctrine that Parliament cannot bind its successors.
What would happen if Parliament enacted legislation intentionally and explicitly binding future Parliaments? E.g. A statute declaring that NO PARLIAMENT CAN REPEAL THE HRA 1998?
• The manner and form argument as, perhaps, THE exception.
Vernon Bogdanor, The New British Constitution
How supreme is cons law in the US vs UK?
• US position - Constitutional Supremacy
‘All laws which are repugnant to the Constitution are null and void.’
(Marbury vs.Madison, 1803)
• UK position - Parliamentary Supremacy (based on Parliament’s sovereignty):
‘The only fundamental law is that Parliament is supreme. The rest of the law comes from legislation or from those parts of judge-made law which have not been abolished by legislation. Strictly speaking, therefore, there is no constitutional law at all in Great Britain; there is only the arbitrary power of Parliament.’
What does the UKSC in Miller 1 say?
‘Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions. Reflecting its development and its contents, the UK constitution was
described by the constitutional scholar, Professor AV Dicey, as “the most flexible polity in existence”’ [40]
What does the UK state constitute?
One state - the UK
Four ‘countries’ - England, Scotland, Wales and NI
One central ‘supreme’ Parliament - Westminster
Three devolved institutions - In Scotland, Wales and NI
No separate Parliament for England (West Lothian Question)
Three legal systems (England and Wales, Scotland and NI) all with the UKSC as final domestic court of appeal for cases (except criminal cases in Scotland unless HRA issues in play)
