Constitutions usually also assert the key rights of the State's citizens, and the extent to which the State can interfere with them.
A codified constitution is one in which all the key rules of the constitution have been organised into a single document - as in the USA. Typically, a codified constitution is a form of "higher law" to which all other laws are subject - so, in the USA, if an ordinary law conflicts with the constitution, then the Supreme Court of the USA is required by the constitution to strike it down.
The UK, on the other hand, has an uncodified constitution. This means that, while the UK does have rules about e.g. who can vote in Parliamentary elections, how Government Ministers are chosen, and key citizens' rights (e.g. the Human Rights Act 1998), these rules are found in a variety of sources, and have no special legal status. Some of the rules (e.g. conventions as to how Government Ministers are appointed) are not even laws at all - just expectations about how the Queen and other key players in the Constitution will exercise their legal powers.
Most countries adopt a codified constitution at a key changing point in their history - e.g. following:
The UK has not experienced any of these events in almost 1,000 years. Instead, the UK's uncodified constitution has evolved gradually, through a series of individual laws and changes, rather than in a single "big bang".
Since a codified constitution is a deliberate attempt to articulate the defining political, social and legal values of the society which adopts it, it usually contains mechanisms designed to "entrench" those values, and protect them against change. These mechanisms typically require any law amending the constitution to be passed by a special majority in the legislature, and/or to be approved by a referendum. This makes it more difficult to change the constitution than it would be to change other, ordinary laws.
For example, while there have been 27 Amendments to the USA's constitution since it was adopted in 1787 (so it's not impossible to change it!), the constitution itself requires any Amendment to be approved by a two-thirds majority in each chamber of the legislature, the President, and three-quarters of the 50 States. In reality, this is extremely difficult to achieve - the most recent Amendment took 203 years to be passed!
By contrast, in the UK, even "constitutional statutes" such as the Human Rights Act 1998, are not subject to any special law-making procedures, and can be changed or repealed just as easily as any other Act of Parliament.
This is a political idea, set out in Baron de Montesquieu's De L'Esprit de Lois, which requires the 3 key institutions of State, i.e.:
to be separate both in function and personnel. This means that none of the 3 institutions should perform or interfere with the functions of another, and that no one should work in more than one of the institutions.
The USA's codified constitution is firmly based on the separation of powers. The UK's uncodified constitution, on the other hand, contains significant overlaps of both function and personnel between Parliament and the Government.
Legal rules are laws. Laws are enforceable, i.e. the courts will hear complaints and provide remedies they are broken.
Non-legal rules are known as "conventions". They operate by the common consent of those to whom they apply, and are observed only for so long as they are perceived to be pragmatic. For example, there used to be a convention that Government Ministers would take responsibility for errors in their departments, and would resign in the case of a serious error - even if they were not personally at fault. As the size of Government departments has grown, this convention has changed so that while Ministers are expected to tell Parliament about mistakes in their department, they are no longer necessarily expected to resign for them.
If a convention is breached, then there is no basis for a complaint to a court, nor can the courts provide a remedy - see Attorney General v Jonathan Cape (Chapter 7).
Royal Assent - while, legally, the Queen has the power to decide whether or not she signs an Act of Parliament into law, in practice Royal Assent has not been refused since 1707.
Appointment of Ministers - the Queen appoints as Prime Minister the party political leader who commands the support of a majority of the members of the House of Commons, and appoints other Ministers on the PM’s advice.
Both these conventions persist, because the Queen (who is unelected) recognises the democratic legitimacy of elected Members of Parliament to enact laws, and to choose the leader of the country.
Primary legislation is an Act of Parliament - made by the legislature, i.e. House of Commons, House of Lords and the Queen acting together (see Chapter 5 for details).
Secondary (or "delegated") legislation, on the other hand, is made by the executive - i.e. by Government Ministers, using powers granted to them in Acts of Parliament.
The distinction is important because while the courts traditionally have no power to question or strike down Acts of Parliament (see Chapter 6), they can strike down secondary legislation on the grounds that it exceeds the powers given to Ministers in the enabling Act of Parliament.
"An Act of Parliament which:
(a) conditions the legal relationship between citizen and State in some general, overarching manner, or
(b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights."
Lord Justice Laws, Thoburn v Sunderland City Council  EWHC 195
Examples given by LJ Laws include the Human Rights Act 1998, the European Communities Act 1972, the Police and Criminal Evidence Act 1984, the Scotland Act 1998 and the Government of Wales Act 2006 - all covered in detail later on in this book.
Note that this definition, and indeed the whole concept of a "constitutional statute" in the UK, is entirely a common law construct, made up by the judges - Parliament itself does not recognise hierarchies of its own Acts, nor is there any special procedure for making, changing or repealing a "constitutional statute"
While there is now proper independence of the judiciary from the legislature and executive, there remains a significant overlap between Parliament and Government, in both:
Incorporation into UK law of Article 6 of the European Convention on Human Rights required defendants in both civil and criminal cases to be tried by an "independent, impartial tribunal".
This meant that the House of Lords could no longer perform both legislative and judicial functions, and led to the creation of a Supreme Court, independent of the legislature, by the Constitutional Reform Act 2005. That Act also significantly reformed the role of the Lord Chancellor, who was previously Head of the Judiciary, a member of the Government and a member of the legislature - see Chapter 8 for further details.
Sections 3 and 4 of the Human Rights Act have had a more subtle impact on the separation of powers - see Question 5, below, and Chapters 6 and 8 for further details.
This term was coined by Lord Hailsham, Lord Chancellor during the 1970's and 1980's.
It means that if a single political party wins a majority of the seats in the House of Commons in a general election, the UK's uncodified constitution affords that party, in effect, absolute power until the next election. So long as the party members remain loyal to their leader, that party will be able to enact whatever laws it wishes, without fear of challenge in the courts (see Chapter 6) and will form the Government responsible for implementing those laws.
A difficult concept to pin down!
At its simplest, it means that Government must act within the legal limits set by Parliament, and that the courts will enforce those limits - so that if the Government goes beyond them, citizens can go to court for a remedy. The flip side of this is that, so long, as Government does act within those limits, its actions are legitimate.
A more complex definition of the rule of law encompasses the notion that, in order to be truly legitimate, laws must be just and fair, as in order to be effective they must command the respect of, and be obeyed by the people to whom they apply. So laws which are cruel, discriminatory and unfair - as in Nazi Germany, where laws authorising the arbitrary murder of ethnic minorities were passed, implemented and upheld by State institutions controlled by the Nazi Party - arguably do not conform to the rule of law in its wider sense, even though they were validly enacted.
An example is provided by R v A  3 All ER 1. In this case, the House of Lords (then, the most senior court in the UK, prior to transfer of its judicial function to the Supreme Court) had to decide how to interpret section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999, which limited the circumstances in which a defendant accused of rape could cross-examine the alleged victim. The court had to decide how far they could stretch the wording of that section to accommodate the defendant's right to a fair trial, under Article 6 of the European Convention on Human Rights.
2 of the 5 judges felt that to authorise cross-examination of alleged rape victims would contradict the intention of Parliament, and therefore violate the separation of powers, on the basis that it is not for unelected judges to reverse the meaning of a statute enacted by the democratically elected legislature.
The majority, however, felt able to "read into" the section, the words "subject to the defendant's right to a fair trial" because section 3 of the Human Rights Act 1998 directed them to do so. To that extent, they were conforming to the rule of law - both in the narrow sense of obeying Parliament's direction, and, in the broader sense, by upholding the fundamental right of the accused to a fair trial.
Parliament comprises 3 elements - the House of Commons, the House of Lords and the Queen.
Of these 3 elements, only one - the House of Commons - is democratically elected, consisting of 650 MPs, elected using the first past the post system, which has itself been criticised (see below).
The House of Lords (whose members are appointed) and the Queen (who inherits her title by birth) are both unelected.
Each person who is eligible and registered to vote gets to cast one vote to choose a single candidate to represent the area in which they live (their constituency) in the House of Commons.
The candidate who polls the highest number of votes in each constituency is elected as the Member of Parliament to represent the people of that constituency, and takes up a seat in the House of Commons.
Easy for voters to use and understand
Parties' share of seats in the House of Commons is disproportionate to their share of the votes cast
Easy to administer and count
Excludes parties with a relatively small share of the vote from the legislature
Clear link between MP's and their constituencies
Votes cast for candidates other than the winning candidate are arguably "wasted"
Historically, has usually produced a decisive result with one party winning a clear majority of seats in the House of Commons - but didn't in 2010, when no single party won a majority of seats and a coalition Government was formed
Encourages tactical voting (so voters don't vote for their first choice party, in an attempt to keep a party they really dislike out of power)
So long as the members of the governing party remain loyal to the Government, the Bill will be passed by the House of Commons.
The House of Lords could vote against the Bill, forcing the Commons to reconsider. If the Commons pass the Bill for a second time, then even if the Lords reject it again, the House of Commons can send the Bill to the Queen for Royal Assent under the provisions of the Parliament Acts 1911 and 1949.
The Parliament Acts were examined in Jackson and found to be valid.
So the House of Lords can delay the passage of the Bill, but cannot prevent it.
Yes - in theory. But in reality, it is very unlikely that she would do so.
The Queen has a legal power to decide whether or not she gives Royal Assent to a Bill which has been either been passed by both Houses of Parliament, or has been passed by the House of Commons and sent to her under the Parliament Acts 1911 and 1949.
By convention, however, the Queen does not refuse Royal Assent. The last occasion on which a monarch refused Royal Assent to a Bill was in 1707 when Queen Anne refused to assent to the Scottish Militia Bill. The convention recognises the democratic legitimacy of the House of Commons, i.e. the will of the people's elected representatives should be respected in enacting legislation.
No – Jenny will have to pay the new licence fee of £50 per dog.
Ordinarily, you would expect the 2014 Act to contain an express repeal of the provision setting the old licence fee in the 1987 Act. Here, Parliament seems to have omitted to do that. So the courts will apply the common law doctrine of implied repeal (see Ellen Street Estates), upholding the most recent of two conflicting statutory provisions.
Although the doctrine of implied repeal does not apply to constitutional statutes (see Thoburn), it is very unlikely that the courts would consider the Dog Licensing Act 2014 to fall within the definition of a “constitutional statute”.
The courts probably would uphold section 2, even though it is a retroactive provision - this means that it changes the law from a date prior to that on which the provision itself comes into force.
Retroactivity contravenes the rule of law, which requires the law to be clear and accessible to citizens. If the legislature is able to change the law retroactively, this makes it impossible for people to comply.
Nevertheless, the UK Parliament has enacted retroactive statutes before. The War Damage Act 1965 retroactively changed the rules relating to compensation for property destroyed by the Government in the Second World War. In Burmah Oil v Lord Advocate the courts upheld the validity of the Act.
The answer is “probably” because Parliamentary sovereignty is a common law doctrine – it was developed by the courts, and can therefore be changed by the courts. In the absence of a codified constitution, however, the traditional relationship between the UK’s courts and its Parliament is that the courts unquestioningly accept Acts of Parliament. Were the courts to depart from this rule, it would be seen as a “constitutional revolution”.
This question is designed to test your understanding of the impact of the Human Rights Act 1998 on Parliamentary supremacy.
Section 3 would breach the requirement in Article 7 to Schedule 1 of the Human Rights Act 1998 that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”.
However, the only remedy which the courts can award in the event of an Act of Parliament contravening a provision of Schedule 1 to the Human Rights Act is a declaration of incompatibility (under Section 4, Human Rights Act). Such a declaration does not change the law – the offending statutory provision continues in force unless and until Parliament amends or repeals it.
Politically, it may be that the award of a declaration of incompatibility would persuade Parliament to amend the retroactive provision, and remove criminal liability for past non-compliance. Legally, however, they are under no obligation to do so.
Some commentators (such as Professor Wade) consider the decision in Factortame to be a “constitutional revolution”, in which the unelected courts set aside legislation enacting the will of the democratically elected Parliament. Others consider that the decision actually strengthens the doctrine of Parliamentary supremacy, by recognising that Parliament itself can change the rules by which the validity of its own Acts are measured.
At the very least, the decision modifies the doctrine of Parliamentary sovereignty to the extent that s.2(4) of the European Communities Act cannot be impliedly repealed. This modification of the implied repeal rule has subsequently been extended in Thoburn to all “constitutional statutes”, i.e. Acts of Parliament which fundamentally alter the relationship between the citizen and the state.
Under Dicey’s doctrine of Parliamentary sovereignty, Parliament can make any law whatever, without restriction. In particular, Dicey considered that one Parliament could not bind future Parliaments by any procedural restrictions (“entrenchment”), as each Parliament, having been democratically elected, should be free to legislate as it wishes.
However, recent developments suggest that the courts would be likely to uphold procedural restrictions such as prior referendum requirements. Evidence for this includes:
The group of senior Government Ministers, headed by the Prime Minister, which run the UK by o formulating Government policy, instructing civil servants to draft Bills to before Parliament, and deciding how to use the Government's existing powers.
Individual ministerial responsibility is a convention by which Ministers are accountable to Parliament for the acts and omissions of the Government Department under their control. The expectation that Ministers would resign in the case of serious mistakes in their Department (as in the Crichel Down affair) has transformed into an expectation that Ministers must tell Parliament about such mistakes, but are not necessarily expected to resign because of them.
Collective ministerial responsibility is a convention by which Cabinet Ministers present a united front in public. Even though Ministers are free to (and often do) disagree during private Cabinet discussions, they are expected to keep the details of such meetings confidential and to support a decision made by the Cabinet in public, even if they personally disagree with it.
There are no legal sanctions. Conventions, while their existence is recognised by the courts, are not legally enforceable so there is no legal remedy if they are breached (Attorney General v Jonathan Cape).A Minister who no longer supports the Cabinet, however, is expected to resign. Should they refuse to do so, they are likely to face political sanctions. Although the Queen appoints and dismisses Ministers, she does so on the advice of the Prime Minister. So a Minister who loses the confidence of the Prime Minister is likely to be sacked.
Public bodies - defined in Datafin as people (e.g. Government Ministers) or organisations (e.g. local authorities) who either:
Any one or more of the following grounds, as set out by the court in CCSU:
Ultra vires is a Latin term, meaning "outside [the body's] powers". The doctrine of ultra vires has been developed as part of the ground of illegality.
Narrow ultra vires covers case where e.g. a public body takes a decision which it has no legal power to make, as in Attorney-General v Fulham Corporation, where the local authority had no power to run a paid laundry service, and was therefore acting illegally.
Wide ultra vires covers cases where the public body does have a legal power to do something, but abuses that power by e.g.:
This is a more subtle form of illegality, in which the way that the public body uses its power is illegal.
The key test is set out in the Wednesbury case. In order to quash a public body's decision on the grounds of irrationality, a court must conclude that the decision is:
"so unreasonable that no reasonable authority could have made it".
NB: it is well worth learning this test, word for word, for your examination!
The test for proportionality (set out in Daly) involves much closer scrutiny of the public body's actions, requiring the authority to justify an infringement of either EU law or the European Convention on Human Rights by demonstrating that:
Note, however, that proportionality is available as a ground of review only in cases involving an alleged breach of EU law or human rights.
An absolute right is one which the State cannot legally restrict, whatever the circumstances.
Qualified rights can be restricted by the State, provided that the restriction meets the following conditions:
Article 3 - prohibition of torture
Article 8 - right to privacy
Article 4 - prohibition of slavery
Article 9 - freedom of thought, conscience and religion
Article 7 - no punishment without law
Article 10 - freedom of expression
Article 11 - freedom of assembly and association
Potentially, yes - in a context where a private company is "performing functions of a public nature", it is caught by the definition of "public authority" in s.6 Human Rights Act 1998.
See, e.g. R (Beer) v Hampshire Farmers' Market in which a private company formed by the local Council to run markets on Council-owned land was held to be subject to the Human Rights Act as it was performing functions of a public nature.
Each case turns on its own facts. For contrasting decisions, see YL v Birmingham City Council(in which a private company running a care home was held not to be performing a public function) and Wallbank (in which a Parochial Church Council, while a public authority in performing certain of its functions, was not subject to the Human Rights Act when enforcing the rights of a private landowner).
s.76 PACE requires the court to exclude evidence of a confession which the defence represent is unreliable, or was obtained by oppression, unless the prosecution can prove beyond reasonable doubt that the confession is reliable. For an example of a confession which was unreliable (and obtained by oppression!), see R v Paris, Abdullahi and Miller.
s.78 PACE gives the court a discretion to exclude evidence which it considers would have an adverse effect on the fairness of the trial. This means that even if the evidence has been obtained in breach of PACE, the court can still hear it if it considers that the nature of the breach does not deprive the defendant of a fair trial (see, e.g. Watson v DPP).
Believe it or not, yes!
s.16 POA 1986 defines a public assembly as an assembly of:
So this kind of everyday meeting actually falls within the scope of police powers to control public assemblies. Note, however, that these powers can only be exercises to prevent serious public disorder, serious property damage or serious disruption to the community (s.14 POA).
Unless Nick and Sofie pose any of these threats (unlikely during a mere conversation, and as Nick is at this stage only on his way to the pub...) then the police have no power to interfere.
The police have no power to ban a public meeting, unless it is a trespassory assembly, i.e. it is being held on private land (or land to which the public have a limited right of access) and risks serious disruption to community life and/or significant damage to land, a building, or a monument of cultural, historic or scientific importance.
The police can impose conditions on public assemblies, on the grounds set out in s.14 POA (see above). These can include conditions as to the time and place of the assembly, and the maximum number of people who can attend. Note that the conditions must be proportionate (see Laporte and Austin).
Contrast this with the police power to ban public processions (i.e. moving protests) under s.13 POA, with the support of the relevant local authority and the consent of the Home Secretary. A banning order should only be made where the police reasonably consider that their powers to impose conditions under s.12 POA are inadequate to enable them to maintain public order.
Tuesday 23rd October 2018