Constitutional Law
Constitutional Law seeks to lay down and define: 1) main offices in which authority is vested; 2) powers which may be exercised by the holders of those offices.R (Quark Fishing Ltd.) v S of S for Foreign and Commonwealth Affairs [2006]
Written Constitution
a) creates organs of governmentb) allocates powers to branches and levels of govtc) legitimizes govt actiond) limits power of govte) confers rights and duties on citizens
UK Constitution
No written constitution due to: 1) Absence of historical circumstances (except in 1653 - Glorious Revolution);2) Preference for pragmatism.
UK Constitution - Recent changes
Membership of the EU - treaties of which may be regarded as a written constitution. Inclusion of ECHR rights thru HRA 1998 --> Distinction less sharp.
UK Constitution - Characteristics
1) Uncodified; 2) Flexible; 3) Unitary - not federal; 4) Monarchical; 5) Has a parliamentary executive, no complete separation of powers
Legal Sources
No fundamental or higher law due to absence of a written constitution. Doubtful qualification: some Scottish judges argue that bits of Acts of Union (1707) are fundamental: MacCormick v Lord Advocate 1953
Legal Sources
Act of Parliament, Delegated Legislation, European Community Law, Judicial Decisions (Common Law), Royal Prerogative, Law & Customs of the Parliament, International Law, Legal writings
Legal Sources - Act of P
Acts of UK Parliament:1) Highest source of law (parliamentary sovereignty)2) Indistinct: nothing to distinguish 'constitutional'3) None 'entrenched': "Parliament has the right to make or unmake any law whatever", said Dicey, 1885.
Delegated Legislation
- made under statutory powers in a 'parent' act- controllable by Parliament- Reviewable by courts on usual judicial review grounds
European Community Law
- Part of English Law by virtue of European Communities Act 1972- s. 2: treaties and legislation- s. 3: decisions of the European Court of Justice
Judicial Decisions
- as well as interpreting legislation, judges have declared and developed the common law- "our constitution is in short a "judge made constitution" said Dicey
Royal Prerogative
- Residual crown powers and attributes- not derived from legislation- enforced by court within common law
Law and Custom of Parliament
- Legal rules - basis of parliamentary privileges- partly statutory or otherwise recognized by the courts
International Law
- public international law is not integrated with the national legal systems- treaty-based law does not become domestically enforceable unless by legislation (the ECHR, HRA 1998)- Customary international law: may be source of common law but 1) does not limit the sovereignty of P: Mortensen v Peters (1906)2) not to be automatically imported as enforceable: R v Jones (2006)
Legal writing
Not a source of law in English lawAt best may be persuasive
Non legal sources - Constitutional Conventions
- feature especially prominent in Britain with the absence of a written constitution- Constitutional conventions: "rules of constitutional behaviour - binding by and upon those who operate the constitution - but not enforced by the courts." - Breach of rule = unconstitutional
Constitutional Conventions - Examples
- Royal assent to bills- Appointment of Prime Minister- Legislating for devolved Scottish matters (Sewel Convention)
CC - characteristics
- informality- uncertainty- flexibility- pervasiveness- importance
CC - Distinguishable from laws?
Dicey: CCs are not laws at all since they are not enforced by the courtsJennings: similarities to lawsA-G v Jonathan Cape Ltd (1976): a cc is an obligation founded in conscience onlyR (Southall) v S of S for Foreign and Commonwealth Affairs (2003): alleged cc was not the court's business.Re Constitution of Canada (1982): held there was a relevant cc following proof but did not enforce
CC - Why follow?
Dicey: Breach results in illegalityJennings: Political Difficulties
CC - should they be made into laws?
e.g. Parliament Act 1911Constitutional Reform Act 2005Adv: 1) Strengthen obligations; 2) Conduce to greater certaintyDisadv: 1) Purchase certainty at the expense of flexibility 2) Inappropriate judicialisationWritten rules and codes such as the Ministerial Code tending to occupy more previous territory for cc.