Constitutional Law Katarzyna Gromek Broc University of York

Constitutional Law � Overview of the Course � Syllabus � 1. Introduction to the Course, An overview and the Idea of the Constitution: � Introduction to the British Constitution, Sources and Nature � 2. The UK’s Historical Framework, Particularity of the British Constitution, � Constitutional Principles � 3. Separation of Powers � 4. Parliamentary Sovereignty and its limits: EU Membership, Human Rights � Act 1998, Devolution � 5. The Rule of Law � 6. The Institutions of the UK, Government in the UK, the Crown, Public � Bodies, Judiciary, Recent reform � 7. Delegated Powers and Delegated Legislation � 8. The Constitution and the Individual: Protecting Rights in the UK, Police � 9. The protection of privacy � 10. Revision lecture �

Lecture 1. �Definition and scope of Constitutional Law �The starting point of studying Constitutional Law should be looking at the role of law and government in society and studying political philosophy in general �How to reconcile individual freedom with social justice? �Is the individual merely a tool in hands of state power? �Constitutional law considers relationship between the individual and the state seen from the legal point of view

Definition of scope of constitutional law �‘ It is inherent in the special character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity’, Thomspon, Whigs and Hunters �Constitutional Lawyer would say, Law concerns the structure and powers of the state

Definition and Scope of Constitutional Law �Constitutional Law should express a degree of consensus about the organs and procedures by which political decisions are taken �Constitutional Law should reflect the value that people attach to human relations, to individual freedom under the law and to institutions such as Parliament, political parties, free elections and a free press

Definition and scope of Constitutional Law � Critics �Laws seen as a product of human decisions �Sometimes wrong? Questionable? Reflecting political will �Weaknesses and imperfections of human nature reasons for law �Lord Acton “Power tends to corrupt and absolute power tends to corrupt absolutely”.

What is Constitutional Law? �Flexible? More than one definitions? �Marshall, Constitutional Theory �‘Constitutional Law is the part of national law which governs the system of public administration and the relationships between the individual and the state’ � The problem of this definition in application to the UK � Many rules, principles and practices under which the UK government operates do not have the force of law.

Definition and scope of Constitutional Law �Constitutional Law: �Problems with definition �No waterproof definition of constitutional law and other branches of law ( UK system does not have comprehensive codes) Human Rights: part of Constitutional Law, Freedom of Association ( a labour law theme) part of Constitutional Law, part of criminal law and procedure could be absorbed by Constitutional Law

Definition and scope of Constitutional Law �Constitutional Law deals with the legal foundations of the institutional hierarchy through which the state is governed. �It deals with the composition, powers, procedures and immunities and relationship between the institutions of the state

Definition and scope of Constitutional Law �There is no clear distinction between Constitutional and Administrative law �Maitland defines administrative law as: “The law which determines the organisation, powers and duties of administrative authorities” �It deals with the exercise and control of governmental power �Administrative Law is more concerned with the work of official agencies in providing services and in regulating the activities of citizens

UK and the idea of constitutionalism �Constitutionalism as a evolving doctrine is associated with the existence of written constitution from which the state’s authority and legitimacy derives and which may limit the power of the state in order to protect the rights of individuals and minorities �Constitutionalism: “the political authority should be bound by institutions that restrict the exercise of power” �In Western Societies’ A written constitution, a democratic parliament shape a culture of respect for the law by the state’s organs and the system of courts that may protect groups and individuals against the abuse of power. �In the UK there is absence of formal limits: example: the MP expenses scandal in 2009

What is Constitution? �Formal sense: � Constitution consists of laws, rules (conventions) and other practices that deal with �The institutions of government �The nature, extent and distribution of powers within those institutions �The forms and procedures through which such powers should be exercised �The relationship between the institutions of government and the individual citizen

Constitution �Narrow meaning of a constitution: �A document having a special legal status which sets out the framework and the principal functions of the organs of government within the state and provides for principles and rules by which those organs must operate. �The meaning of the constitution in the UK �“ By constitution we mean, whenever we speak with property and exactness, that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed” Bolingbrook 1733

The UK Constitution �UK has a constitution: it has a comprehensive system of government �In sense �“ the whole system of government of a country, the collection of rules which establish and regulate or govern the government” �A system based upon: �Acts of Parliaments �Judicial decisions �Political practices and detailed procedures

Constitution in the UK � studying a Constitution in the UK is studying various theories, principles, institutions of which the Constitution is composed. �There is no comprehensive attempt to collect and codify in a single instrument �However there are some forms of codification Individual and the State: � The Constitutional Reform Act 2005, �The Public Order Act 1994, Terrorism Act 2006

Unwritten Constitution �Israel and New Zealand �Why? �The degree of political continuity � if it is too rigid in time of political change it leads to the abandonment and replacement of a pre-existing constitutional order

History �The English Civil Wars led to the creation of the most significant statutory elements of the postrevolutionary constitutional settlement, the Bill of Rights 1689 and the Act of Settlement 1700 �Gave rise to the principle of parliamentary sovereignty �Since 1830 noticeable moderate and social reforms in order to ensure uninterrupted economic development �Social and cultural factors: �Stable conditions of the UK unwritten constitutions �Lack of strong historical events

Why unwritten Constitution? �A considerable level of agreement concerning the role of government and a reluctance to allow political groups to interfere with personal relationship � a willingness to favour graduate development and moderate change with a dose of suspicion to radical solutions �Cherishing the political symbols: the monarchy, a sense of national identity and loyalty

UK Constitution: �Flexibility: �The Constitution can be changed in the one of the following ways �Changed by legislation enacted in normal parliamentary procedure �By judicial decisions �By change in existing conventional practices �Constitution has no entrenched provisions �( exceptions) special legislative procedure and/or approval in a referendum

UK Constitution �Unitary �Ultimate authority is Westminster Parliament �Ultimate legal authority is not divided between the central and regional authorities �Local government is conducted by county, district and unitary councils �Devolution: any legislation outside the prescribed limits or inconsistent with the Westminster legislation is invalid

Sources of the UK Constitutional Law �Formal sources: �A) Legislation �B) Judicial decisions �C) The Law and Custom of Parliament �D) EU Law �E) International Law � Other sources �Constitutional Conventions: they do not have the force of law but they have a great importance in maintaining the UK Constitution

Sources of Constitutional Law �A) Legislation �In absence of written constitution, the Acts of Parliament determine the functions of government �i) Statutes on the structure of UK and Commonwealth (Acts of Union, Statute of Westminster 1931, European Community Act 1972) �ii) Statute on the Monarch power and Royal Prerogative (Bill of rights 1689, Act of Settlement 1700, Crown Proceedings Act 1947 -Crown could be sued in contract and tort)

Sources of the UK Constitutional Law �A)Legislation �iii) Statutes on Election, Composition and working of Parliament (Parliamentary Constituencies Act 1986, Political Parties, Elections and Referendums Act 2000, House of Lords Act 1999 -removal of hereditary peers) �iiii) Statutes on Judicial System ( Courts Act 1971 created Crown Courts), Constitutional Reform Act 2005 �iiii) Statutes on administrative process (Tribunals Inquiries acts 1958 -92)

Sources of the UK Constitutional Law �A) Legislation �Historically, some statutes have had constitutional significance � 1) Magna Carta 1215 (King John) later approved by the English Parliament �Collection of rights of various classes of the medieval society respecting their different needs

Magna Carta 1215 � called: ‘fundamental statute’ the most important in the history of England �Protection from arbitrary punishment : right to fair trial and reliance on a fair judging system �‘No man should be denied justice’ �‘no man should be punished except by the judgment by peers or the law of the land’ �Merchants should not be subjected to unjust taxation �London and other cities could enjoy their liberties and customs �The Church enjoyed a special position to remain free.

Sources of the UK Constitutional Law � A) Legislation: Historical development �Petition of Right 1628 (enacted by the English Parliament) �Protest against taxation without consent of Parliament �Protest against arbitrary imprisonment �Bill of Rights and Claim of Right 1688 -1689 �Restoration of Monarchy in 2 Kingdoms: English and Scottish Parliaments

Bill of Rights and Claim of Right 1688/89 �freedom from royal interference with the law (the Sovereign was forbidden to establish his own courts or to act as a judge himself) �freedom from taxation by royal prerogative, without agreement by Parliament �freedom to petition the king �freedom to elect members of Parliament without interference from the Sovereign �the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself (the basis of modern parliamentary privilege) �freedom from cruel and unusual punishments, and excessive bail �freedom from fines and forfeitures without trial

Sources of the UK Constitutional Law �A) Legislation, Historical development �The Act of Settlement 1700 � Succession to the throne � separation of the roles of the Crown, House of Commons and the Judiciary � the monarch's powers became conditional on the approval of Parliament. �the judges in the higher courts, once appointed, do not have to be renewed subject to the approval of either parliament or the Crown. �The monarch could not sit in the Commons.

Sources of the UK Constitutional Law �A) Legislation � Other statutes of constitutional importance � Act of Union with Scotland 1707 �Parliament Acts 1911 and 1949 �European Community Act 1972 �Human Right Act 1998 �Constitutional Reform Act 2005 �Constitutional Acts need to be referred to a committee of a whole House �The doctrine of implied repeal does not apply

Sources of the UK Constitutional Law �B) Case Law �Courts against the use of torture A v Home Secretary 2005 �Statutory Interpretation � alter the existing rights and privileges of the Crown � Lord advocate v Dumbarton DC [1990] �Give retrospective effect to penal enactments Waddington v Miah [1974] � interpretation of ex. Human Rights Act

Sources of the UK Constitutional Law �C) The law and custom of Parliament �The Houses of Parliament have power to override their own procedures � An example: procedure and setting up different stages how Bills are passed in Parliament. �Codes of Conduct for Members of both Houses (each House has its own code of conduct) �Parliamentary Standards Act 2009 (expenses scandal)

Sources: Conventions: Rules of constitutional morality �D) Constitutional conventions �Rules which are not Acts of Parliament of fruit of judicial decisions but observed by the Queen, ministers, members of Parliament, judges and civil servants �Dicey �“conventions, understandings, habits or practices which, though they may regulate the conduct of the several members of the sovereign power. . . are not in reality laws at all since they are not enforced by the courts”

Constitutional Conventions � Dicey’s approach: �Constitutional Conventions: conventional conduct �To do something what is customarily expected �“a generally accepted political practice, usually with a record of successful applications or precedents” �“ rules of constitutional behaviour which are considered to be binding upon those who operate the Constitution but which are not enforced by the courts. . ” Marshall and Moody

Sources of the UK Constitutional Law �D) Constitutional Conventions �Examples: � �Queen’s speech to open the session of Parliament. �Royal Assent is given by the Queen on the advice of the Ministers �Monarch has unlimited power to appoint whoever to become her Minister however appointments are made on the advice of Prime Minister thus by ‘convention’ a new Minister needs to belong to one or other Hoses of Parliament. �‘conventional rule’ a new government must have the confidence of the majority in the House of Commons

Conventions �Examples �Conventions regulating the work of Parliament �The House of Lords should give way to the House of commons �Financial measures should be introduced by the House of commons and not altered by the House of Lords �In the event of a ‘tied vote’ in the House of Commons, the Speaker’s casting vote is cast for the government

Sources of the UK Constitutional Law �What happens when the conventional rule is breached? �Loss of office �Departure from the public life �Minister is forced to resign