Flashcards in Week 1- Nature and sources of the constitution (conventions) Deck (42)
What was Ivor Jennings 3 rules about conventions?
Did the political actors feel they were bound by the rule?
Was there precedent for the rule?
Is there a reason for the convention?
Not all criteria must be satisfied for a convention to exist, as there may not have been the political situation previously for the convention, but often the more significant conventions are written down ie ministerial code and therefore may have developed overtime and be guided by precedent.
-Resonates with Jaconelli's contention that conventions are rules which 'pull themselves up by their own bootstraps'
Who talks of a spectrum of conventions and what do they say?
-Barber refers to conventions lying on a spectrum, which suggests that whilst overall no convention is enforceable by the law, conventions retain different levels of constitutional significance
-Some are more straightforward in their use whilst others are much more open to interpretation by political actors and therefore carry a certain level of ambiguity, often owing to the fact they are unwritten.
Who's essay makes arguments for a written constitution and what are the 3 arguments in favour of a written constitution?
-Prompts parties to express their views on particular rights, which may improve the democratic process as the electorate may have a more comprehensive understanding of what their MP stands for.
-There are many areas of our constitution open for discussion (Lords reform, voting reform, executive and military control) which would be more carefully considered when debating a written constitution in more detail.
-There is too much of our written constitution accepted with acquiescence or ratification rather than authorship; logistically it would be impossible to codify or write out our whole constitution, but the most fundamental aspects should be written out.
How does King propose a constitution become written?
-Joint authorship of a written constitution which encompasses the most fundamental rights, in which each matter is debated and deliberated on carefully by a constituent assembly.
-Democracy remains a central part in allowing us to self-govern, and the electorate has a role in electing those members who they feel are best suited to contribute to a written constitution.
-The written constitution would be done by a constituent assembly with their own legislative powers
What body does King propose would create the written constitution and what 3 things does he expect them to be?
-A constituent assembly with their own legislative powers
-The assembly should be 1) representative of the people 2) debating the relevant questions and 3) have real authority in that their decisions be respected by those in power
Why does King feel that parliament is not best placed to draft a written constitution?
The public should be playing an active role in the creation of a written constitution; parliament is too easily dominated by the executive or leadership is too heavily split.
-Members of parliament certainly should be involved in the writing of our constitution, but not sitting as MPs in parties voted on by our electorate, to avoid them being bound by conventions like joint ministerial responsibility or cabinet confidentiality
What 3 main objections are made there against a written constitution?
1) Package constitution (Barber who disagrees with Hailsham and Scarman)
2)Movement towards a more legal constitution shifts previously political matters towards more legal matters, if the constitution was to be codified rather than just written; there no guarantee that the courts are better vindicators of rights than parliament, and amendment/ flexibility of these political matters through the political process is not possible under an entrenched codified constitution.
3) Formally writing down many aspects of the constitution which already exist (albeit in unwritten or partially written forms) may give a facade of change; many aspects of constitution already 'written' eg conventions and therefore this hardly increases the power of the judiciary. (Barber)
What is the 'package constitution' and why does Barber disagree?
-The package constitution as envisioned by Hailsham and Scarman is designed to codify aspects of the constitution in a written bill of rights, as well as limiting parliaments legislative ability within the entrenched constitutional laws.
-The package constitution would likely be voted on via referenda, but rather than voting in each individual aspect of the constitution, the electorate would be faced with an 'all or nothing' vote in which they are unlikely to be involved in the contents of the constitution which they are given the vote on
-People are likely to favour some aspects, and show acquiescence towards other aspects, and there's no correlation between supporting unconnected aspects of the constitution which may need reforming and codifying.
What does Griffith think about the 'package constitution'?
He disgarees with Scarman and Hailsham because he recognises the difficulty in determining the contents of a written constitution, with different groups of people placing different levels of importance on different rights.
What does Tomkins think is the central aspect of a political constitution and how does he describe it?
Ministerial accountability- 'a simple and beautiful rule'. Political matters within a political constitution allow OS to be upheld, but the principle of legality means that parliament squarely faces up for its decisions and accepts the political cost.
What does Bellamy regard as the benefits of a political constitution in comparison to an entrenched constitution?
-Our constitution never escapes democracy in that ‘it is never beyond question or amendment by the principal political institutions, acting through ordinary political (and for the most part legislative) processes.
-It is the day-to-day political processes which are inherently flexible and therefore integral to a political constitution, as the constitution is always within the reach of parliament in a way which is impossible under an entrenched and codified constitution.
What do Gee and Webber focus on when comparing legal and political constitutions?
The comparative rigidness of legal constitutions compared to political ones.
-Gee and Webber illustrate the differences between legal and political constitutions by comparing the relative powers of political actors in both. Whilst under a legal constitution, many potentially political subjects such as rights become a matter for the courts and are not easily changeable through the normal political process, owing to the comparative rigidness of a more legal constitution, whilst a political constitution has ‘no fixed constitutional boundaries’ for political actors in parliament, in that they are free to make and unmake and law they desire (PS).
What does King recognise to be the trade-off in moving towards a written constitution?
The apparent increased clarity that might be gained from writing down much of the constitution will come at the price of increased judicial power via interpretation of the laws of the constitution, and a rigid amendment process; two things that could pose serious threats to a sovereign parliament.
What are the facts and significance of Simms v Secretary of State for the Home department?
Facts- Simms and another serving a life-sentence for murder, under prison act 1952 they were prohibited from taking part in spoken interviews if they were to be published.
Significance- Principle of legality: -this means that ‘parliament must squarely confront what it is doing and accept the political cost’ even though there exists only political rather than legal restraints on their power.
- “in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general of words were intended to be subject to the basic rights of the individual.”
What are the facts and significance of Thoburn v Sunderland City council?
Facts- weights and measures act 1985 inconsistent with laws sourced under the ECA 1972 act
Significance- constitutional statues v 'ordinary' statutes. Hierarchy of laws exist in which constitutional statues like ECA 1972, HRA 1998, PRA 2005, Bill of rights etc cannot be impliedly repealed. The common law understanding that all statues can be repealed impliedly was rejected
-Provides the protection of fundamental rights in the same way as a written constitution, but ‘preserves and sovereignty and flexibility of our uncodified constitution’.
What are the facts and significance of R( Buckinghamshire) v transport secretary?
Facts- HS2 related, environmental directive should've followed the work towards the high speed railway
Significance- there exists some hierarchy within the higher level of constitutional statutes as mentioned in Thoburn.
-The enactment of the ECA 1972 did not mean that it was intended by parliament to abrogate well-established principles.
-Lord Neuberger and Mance held that, following Factortame, the ECA 1972 does not require national courts to accord primacy to EU law over all domestic laws.
--“Instead, the extent of EU law’s qualified primacy is, on this analysis, delimited by other constitutional measures—including (some) other “constitutional” legislation, and perhaps (some) common-law constitutional rights and principles" (Elliot)
What does entrenchment mean?
Entrenchment means to give special protection to fundamental rights, such as those contained in codified constitutions like in the USA. They require a special amendment process which is more rigorous than changing statutes in the UK or changing the understanding of UK conventions.
-This process may require referenda or 2/3 senate majorities; therefore amendment is subject to new legal restraints
What are checks and balances?
The way in which different institutions of the government limit the power of the others.
-In the US, this involves an extension of judicial power relative to those the UK, as judges of the Supreme Court are given powers of judicial review which include striking down legislation which is unconstitutional.
What is collective responsibility (convention)
Ministers of parliament are bound by the decisions of parliament and must publicly accept them even if they privately disagree; public disagreement calls very often for resignation, although this isn’t enforceable by law
What is the ministerial code?
Politicians must give accurate information, and knowingly misleading parliament should lead to resignation being offered. Furthermore the ministerial code is enforced by the Prime minister which sets out behavioural obligations of all ministers. Conventions appear to lie on a spectrum of how enforceable (or not) they can be.
What is the Sewel convention?
Westminster parliament are happy to allow self-regulation by the government of Scotland without getting involved, after devolution to Scotland under the (Scotland act 1998 s28(8)) ; Westminster parliament normally won’t get involved without a legislative consent motion. This became legislated in the Scotland act 2016 s28(8) which was amended in the original Scotland act 1998
What is the Salisbury convention?
The house of lords will not block the second or third reading of a law contained within a parties manifesto, effectively allowing a majority party to eventually pass any law without contention, so long as it is mentioned in their manifesto.
-The judges then cannot challenge such legislation, they can only enforce it, whereas a checks and balances approach (as in the USA) would allow courts to strike down legislation which they deem unconstitutional
R(Miller) v Secretary of State for exiting EU facts and significance?
Facts- The devolved territories were protected from Westminster's powers to legislate for them by political factors alone; the withdrawal bill which would lead to legislation on devolved or non-reserved matters did not legally require a legislative consent motion to be agreed.
Significance- “therefore, courts are neither the parents or enforcers of conventions. They are merely the observers”
-Strong arguments were made to show that the Sewel convention was recognised within the devolution legislation and was therefore of great constitutional importance
-It did not follow, however, that this changed the political status of conventions, and their enforcement still was not a matter for the courts to adjudicate directly on
Re Amendment of the constitution of Canada
Facts- Convention existed in which Canada should seek the approval of its provinces before making constitutional change, which Canadian government initially did not do.
Significance- conventions, whilst not legally enforceable by the law, may be so important as to guide the behaviour of political actors even when they wouldn't be faced by legal sanctions.
Facts and significance of Madzimbamuto v Lardner-Burke
Facts- A convention existed that the UK would not legislate for self-governing colonies, which Rhodesia had declared themselves to be when implementing a UDI. They ignored the WMP act which allowed WMP to dismiss the Rhodesian government and continued to rule. Madzimbamuto was detained as someone likely to cause public disturbance (legally) but the extension of the emergency detention powers, by a government which had been dismissed as improper by WMP, was in fact illegal.
Significance- It was held that the convention, whilst significant in the running of Rhodesia and the relationship between the UK and its colonies, it was not legally enforceable, and it was acceptable for the UK to dismiss the Rhodesian government, thereby voiding all subsequent governmental decisions.
-“the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things.” And yet under conventions the UK parliament could still carry out such things, the courts could not hold them to be illegal.
A-G v cape facts and significance
Facts- A-G attempting to block the publication of parliamentary discussions in an ex-MPs memoirs. Held that if it violated the convention of ministerial confidentially it would violate public policy and be illegal under the common law. 10 years had passed however and therefore publication was accepted.
Significance- -The case shows the inability for the courts to enforce a political convention, although had the publication been in conflict with PUBLIC POLICY UNDER THE COMMON LAW; specifically if the publication undermined cabinet confidence based on public policy grounds.
-The convention would only provide further reasoning for the decision under the common law. Again, conventions are not a matter for the courts; the preservation of the convention could be enforced under the common law relating to public policy, but not the convention itself, which is why publication was accepted because 10 years had passed since the cabinet discussions.
-There is a clear distinction here between the courts recognising a convention and actually enforcing it
What parts of the Scotland act and government of Wales act recognise the sewel convention?
SA 28(8) and GOW s107 (6)
What does Dicey say about conventions not being laws?
Dicey says in the ‘laws of the constitution’ that a rule is a law only if courts are willing to enforce it, the key is that they are not willing enforceable by the courts (conventions), therefore conventions aren’t laws
What is the difference between a written constitution and a codified constitution/
A codified constitution is one single legal document of constitutional law, whereas a written constitution means that different measures of the constitution are available in written form.
-The UK does not have a codified constitution like the US, but is partly written; we have constitutional statutes which are written acts of parliament, conventions which may or may not be written, the common law which is unwritten but operates through precedence.
-Therefore the movement towards a written constitution has different constitutional implications to a movement towards a codified constitution