Constitutional and Administrative Law

Implications of the Constitution

1) Constitution are antecedent. The word 'antecedent' means that constitution are made before a country's ordinary laws are made when a country comes into existence, or when people went a fresh start regarding the government and legal system. This can occur when a country gains independence from colonial rule, revolutions, wars and fundamental political crises. 2) Constitutions are an act of the people. In this context 'the people' means everyone legally entitled to participate in the political life of the country and/or their elected representatives. Matters like the name of the country, its territory. the legal form, its flag, national anthem, religion and capital city should be agreed upon. They will also have to agree upon how the country will be run and by whom, as well as the state fundamental human rights. 3) The Constitution gives a country legal legitimacy, sets up its governmental institutions, grants them their powers, regulates them, defines the relationship between the citizen and the state, as well as describing fundamental human rights.

Introduction to Constitutional Law

1) Constitutional law in the wide sense is a body of legal and political rules which concern the government of a country. 2) A constitution in the narrow sense is a document or set of documents intentionally drafted to form the fundamental law of a country. 3) Constitutions may be classified as written or unwritten, flexible or rigid, monarchial or republican, federal or unitary, supreme or subordinate to the legislature, or based on the separation of powers. 4) The British Constitution is unwritten, flexible, monarchial, unitary, subordinate to the legislature and based on a partial or limited degree of separation of powers.

Two principles for constitutional conventions

1) The courts may be prepared to take constitutional conventions into account and give an opinion as to their existence and extent. 2) The courts can take constitutional conventions into account to interpret the statutes or commonwealth constitutions.

Facts about Constitutional Law!

1) The primary sources of constitutional law are the common law, statutes, European Union (EU) law, decisions of the European Court of Human Rights and the law and custom of Parliament. 2) These legal rules play an important role in the process of government. 3) Virtually important parts of the process of government in the UK are regulated by binding political rules and practices called 'constitutional conventions.' 4) There is an identifiable distinction between binding constitutional conventions and non-binding 'practices'. 5)Some writers suggest that they can be recognised and stated with precision by applying the appropriate test. 6) The Courts have no jurisdiction to grant a remedy where the sole basis of the claim is that a constitutional convention has been breached. 7) The only way a constitutional convention can become law is by statute.

Examples of ancient usage

1) The requirement that a bill be read three time in each House 2) The practice of the House of Commons sitting as a Committee of the Whole House when considering certain types of Bills; and 3) The procedure governing the work of select committees Ancient Usage is like the common law of Parliament!

Can constitutional conventions becoming law?

A constitutional convention can become law by statute. An example contained in s20(1) Constitutional Reform and Governance Act 2010. This provides that a treaty cannot be ratified unless a minister of the Crown has laid a published copy of it before Parliament which has 21 sitting days to object to its ratification. This is done by a resolution. This is a codification of the Ponsonby Rule.

Madzimbamuto v Lardner Burke [1969]: Legal Principle

A constitutional convention, however important can have no legal effect to limit the legislative supremacy of Parliament.

Attorney General v Jonathan Cape Ltd [1953]: Legal Principle

A court can restrain publication of Cabinet material only where there is a breach of confidence or it is in the public interest to do so to protect collective Cabinet responsibility. But this lapses with time according to the circumstances of each case. Applying this principle, sufficient had lapsed to allow publication.

Monarchial Constitution

A monarchy has a king or queen as head of state who is appointed according to the hereditary principle. The British Constitution is monarchial in this sense.

Republican Constitution

A republic has an elected president as head of state who may or may not exercise executive functions within the process of government. France and the United States of America are republics in which the elected president exercises executive powers and is involved in the political process. The Federal Republic of Germany has a non-executive elected president who does not exercise political power. The duties of the German President include protection and promotion of the well-being of the German People, safeguarding the Basic Law, signing international treaties and signing off the documents appointing diplomats and civil servants. Political power is exercised by the German Chancellor and other members of the federal government.

Why do countries have a constitution?

A widely held assumption in the modern world states that constitutions are necessary. They are assumed necessary to ensure that law are made in a way which serves the relationship between the citizen and the state positively, by benefitting the country as a whole and protecting fundamental human rights. They are assumed necessary to make sure that the administrative functions of the government are carried out properly within well-defined legal limits only by those empowered to do is. They are assumed to be useful to ensure the efficient administration of justice by stating out the structure and jurisdiction of courts and tribunals. This may be difficult to achieve in practice.

Madzimbamuto v Lardner-Burke

After the unlawful declaration of independence by the Government of the Crown Colony of Southern Rhodesia in 1965, the UK Parliament passed the Southern Rhodesia Act 1965 to deal with the circumstances arising from this unconstitutional action. In this case, the question was whether or not Parliament could properly legislate for Southern Rhodesia. The relevant constitutional convention was that the Parliament at Westminster would not legislate for Southern Rhodesia on matters within the competence of the Legislative Assembly of Southern Rhodesia. The key principle is that a constitutional convention has no legal effect in limiting the legislative power of Parliament. The Privy Council held, by majority that Parliament could properly legislate for Southern Rhodesia.

Unitary Constitutions

All governmental powers originate from central or national government. The central or national government can transfer powers to regional and local authorities but these remain subordinate to the central or national government and can be overridden by it.

Can the courts do anything with a constitutional convention?

Although the courts do not grant remedies for breach of constitutional conventions, they do sometimes look at them, at least indirectly in the course of legal proceedings.

Marbury v Madison (1803)

Among other things the US Supreme Court had to decide whether it had jurisdiction to review acts of Congress and determine whether they are unconstitutional and therefore void.

Ancient Usage

Ancient usage is a set of rules contained in the orders and resolutions of the House of Commons. They are recorded in the journals of the House of Commons dating back to the seventeenth century.

The law and custom of Parliament

Apart from statutes like the Parliament Acts 1911 and 1949, the Royal Assent Act 1967 and Fixed Term Parliaments Act 2011 there are other sources governing parliamentary procedure.

C Munro in Studies in Constitutional Law (1999)

C Munro supports the view about Unwritten Constitutions.

Constitutional Conventions

Constitutional Conventions are binding political rules many of which may be stated with the precision as laws. AV Dicey, in Introduction to the Study of the Law of the Constitution (1885), distinguished between laws and conventions. Laws are enforceable in court and constitutional conventions are not. There are no judicial remedies or penalties if conventions are violated.

Are all constitutional conventions binding?

Constitutional convention are, generally speaking, binding political rules. Some authorities distinguish between binding and non-binding political rules.

Examples of Constitutional Conventions

Constitutional conventions are of fundamental practical importance in many vital areas of government. These include the granting of the royal assent, the appointment of the Prime Minister, the appointment and dismissal of ministers, the formation and membership of the Cabinet, opening and closing Parliament, government formation in hung Parliaments and judicial constitutional conventions. They apply to Parliament, the executive and the judiciary.

Narrow definition of Constitutional Law

Constitutional law is a set of rules contained in a document or set of documents intentionally drafted to be the fundamental or basic law which establishes a country and sets up its government.

Wide definition of Constitutional Law

Constitutional law is simply a set of rules concerning the set up and government of a country.

Meaning of Constitutional Law

Constitutional law suits a country and its government together on a legal basis and contains the ground rules which regulate it.

Written and Unwritten Constitutions

Constitutions in the narrow sense are also called written constitution.

Manuel v Attorney General [1982]: Legal Principle

Conventions cannot become part of the common law in the same way that customs are capable of doing.

Manuel v Attorney General (1982)

Conventions cannot become part of the common law in the same way that customs are capable of doing. This case was an attempt to question the legality of the Canada Act 1982 in the British courts by a minority group within Canada. It was suggested that the constitutional convention that the UK Parliament should not legislate for Canada, except with its consent, might have crystallised into law by formal recognition or by long acceptance.

De Smith and Brazier in Constitutional and Adminstrative Law (1998)

De Smith and Brazier in Constitutional and Adminstrative Law (1998) said that conventions were forms of political behaviour regarded as binding and as such were distinguishable from non-binding usage.

Watt v Kesteven Company Council (1955): Lord Denning's statement

Denning LJ held that the duty to make schools available could be enforced only by the minister and that s76 did not create a cause of action entitling an individual to a remedy in the civil courts.

Are there different categories of constitutional conventions?

Dicey focused on the purpose of law and the jurisdiction of the courts. He was aware that there are different classes of rules. Some conventions are as important as laws. As political rules they are obeyed to a greater or lesser degree.

What is the jurisdiction of the court over constitutional conventions?

Dicey's answer is that constitutional conventions are not legal rules because the courts have no power (jurisdiction) to enforce them.

European Union Law

European Union law is incorporated into UK law by ss2 and ss3 European Communities Act 1972('the 1972 Act'). Laws LJ in Thoburn v Sunderland City Council (2003) said that rights given to people under EU law prevail over the express terms of UK law, including Acts of Parliament made or passed after the coming into force of the 1972 Act, even in the face of plain inconsistency between the two. Section 18 European Union Act 2011 makes it clear that EU law takes effect subject to the will of Parliament.

G Marshall and GC Moodie in Some Problems of the Constitution (1971)

G Marshall and GC Moodie in Some Problems of the Constitution (1971) draw a distinction between obligatory and non-obligatory rules. A rule must prescribe something if it is to guide action or state obligations. The true basis for a rule is prescription not description: description is not a weak form of prescription.

Hood Phillips and Jackson, in Constitutional and Administrative Law (2001)

Hood Phillips and Jackson, in Constitutional and Administrative Law (2001) incorporates the distinction between usages and convention into their definition of constitutional conventions.

Are laws and conventions different in kind?

In Cabinet Government (1969), Sir Ivor Jennings said that law and conventions work in similar ways and that both are obeyed by those to whom they apply. Some conventions were fixed as laws and could be stated with as much precision.

Acts of Parliament

In Thoburn v Sunderland City Council (2003), Laws LJ defined constitutional statutes as those which condition the legal relationship between the citizen and state in some general overarching manner; or which enlarge or diminish the scope of fundamental constitutional rights. Laws LJ concluded that the special statutes of constitutional statutes included: Magna Carta 1297, the Bill of Rights 1689, the Union with Scotland Act 1706, the Reform Acts which distributed and enlarged the franchise (Representation of the People Acts 1832, 1867 and 1884), the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. Finally, he said that the European Communities Act 1972 is also a constitutional statute because it incorporated into UK law the whole body of substantive Community rights and obligations and gave overriding domestic effect to the judicial and administrative machinery of Community law.

Federal Constitutions

In a federal constitution the governmental powers are divided between a central government, which may be called the federal government and state, regional or provincial governments. In a federal constitution the members states retain their sovereignty, freedom and independence. Every power, jurisdiction and right not expressly delegated to the federal government is retained by the states. This concept follows that the federal government exercises its powers separately in its own sphere according to the powers delegate to it by the states.

JDB Mitchell's Response

JDB Mitchell in Constitutional Law, 2nd edn (1968) said that it may be wrong to distinguish between laws and conventions because both were based on precedent and can overlap.

JDB Mitchell, in Constitutional Law 2nd edn (1968)

JDB Mitchell, in Constitutional Law 2nd edn (1968) also stressed the need to distinguish between non-binding political practices and binding constitutional conventions.

KC Wheare's Opinion

KC Wheare recognises the same distinction referring to flexible and rigid constitutions. A rigid constitution requires a special procedure to make and amend it. A flexible constitution does not.

Discussing Written Constitutions

KC Wheare, C Munro and Bradley Ewing and Knight also emphasise the point that a written constitution has special legal status. This implies that all laws must be compatible with the constitution and that the organs of government are subject to it as they carry out their functions. Constitutions in the wide sense are also called unwritten constitutions. When discussing unwritten constitutions most of the commentators stress that the point that constitutional law has no special legal status.

The classification of constitutions

KC Wheare, in Modern Constitutions, 2nd edn (1966) expresses the opinion that constitutions can be classified as written and unwritten, flexible and rigid, unitary and federal, monarchial and republican, constitutions in which the legislature or the constitution is supreme and constitutions based or not based on the separation of powers.

Royal Assent

Law Every bill must receive a royal assent after it has passed its necessary parliamentary stages. Convention The monarch will give the Royal Assent to every bill which has passed successfully through Parliament when advised to do so by ministers.

The Judiciary

Law High Court judges in England and Wales hold their offices by statute during good behaviour, subject to a power of removal by the Monarch on an address presented to her by both Houses; by statute they are disqualified from membership of the Commons. Convention Because the judge's primary task and responsibility is to discharge the duties of office, it follows that a judge should, so far as is reasonable, avoid extra-judicial activities that are likely to cause the judge to have to refrain from sitting on a case because of a reasonable apprehension of bias or because of a conflict of interest that would arise from the activity. A specific application of that principle is that a judge must forego any kind of political activity and on appointment sever all ties with political parties.

The Cabinet

Law The Cabinet is recognised in statutes concerning ministerial salaries and pensions. Convention The most important constitutional convention governing the Cabinet is collective Cabinet responsibility. This means that members of the Cabinet do not voice dissent on government policy once a decision is taken. A Cabinet minister who cannot sustain a Cabinet decision should resign. Examples of this include: The resignation of Amber Rudd due to the Windrush scandal! The resignation of Borris Johnson and David Davis, due to the disagreement of the outcome for Brexit.

Opening and Closing Parliament, hung Parliaments and government formulation

Law The Monarch is the only person who has the legal power to open and close Parliament. The life of a Parliament is governed by statutes like the Parliament Act 1911 and the Fixed Term Parliaments Act 2011. The rules governing the conduct of elections are statutory. Convention In the event of a hung Parliament the incumbent Prime Minister has the first opportunity to continue in office and form an administration. If he is unable to do so (and resigns or is defeated on the Address or in an no confidence motion at the meeting of the new Parliament) then the Leader of the Opposition is appointed Prime Minister. It is for the political parties to negotiate any inter-party agreement for government among themselves without royal involvement.

The appointment of ministers

Law There are no legal rules governing the appointment of ministers beyond the Royal Prerogative at common law and those contained in statutes like the House of Commons (Disqualification) Act 1975, the Parliamentary and other Pensions Act 1972 and the Ministerial and other Pensions and Salaries Act 1991. Convention The Monarch appoints ministers upon the advice of the Prime Minister and ministers are individually responsible to Parliament. This means that ministers are appointed from the membership of the House of Commons and the House of Lords.

The appointment of the Prime Minister

Law At common law under the Royal Prerogative the Monarch has unlimited power to appoint ministers including the Prime Minister. Convention The government must have the confidence of a majority in the House of Commons. This means that the Prime Minister is appointed from the membership of the House of Commons. The Prime Minister is normally the leader of the political party with a majority of seats in the House of Commons. If the party of which the Prime Minister is a member loses its majority in the House of Commons, he and the other members of the government, will normally resign before the first meeting of the new Parliament.

Liversidge v Anderson (1942)

Liversidge v Anderson supports the first constitutional principle. Regulation 18B Defence (General) Regulations 1939 gave the Secretary of State for the Home Department the power to make orders to detain if he had reasonable cause to believe that they were of hostile association. One such person brough an action against the Secretary of State for false imprisonment, which failed. In coming to its decision, the majority in the House of Lords took notice of the convention that the Secretary of State its answerable to Parliament under the doctrine of ministerial responsibility.

Observations in terms of the UK Constitution

Lord Birkenhead observations in Mc Cawley v The King (1920) is largely based on historic development with no special legal status. These were explained in the Miller case.

McCawley v The King (1920): Lord Birkenhead's observations

Lord Birkenhead observed that the constitutions of some countries contain clauses requiring a special procedure and in certain situations a special legislative assembly to amend them whilst the United Kingdom have no special procedure for making, amending and repealing constitutional law. He called constitutions which required a special procedure 'Controlled Constitutions'.

Maitland, in The Constitutional History of England (1961)

Maitland, in The Constitutional History of England (1961), also recognised that such rules differed in stringency and definiteness.

Munro, in Studies in Constitutional Law (1999)

Munro, in Studies in Constitutional Law (1999) agreed with Maitland. Munro concluded that it was sensible to have a two-class approach where it is clear that groups of uniform non-legal rules of a high stringency and definiteness exist. Where such uniformity does not exist a two-class approach is not so easily achieved.

Munro's response

Munro, in Studies in Constitutional Law (1999), says that nothing in Mitchell's argument demonstrates conclusively that distinguishing between laws and conventions will fail. Munro concludes that conventions and laws appear to be similar because they are both rules operating in society. They are not necessarily the same because they look similar.

NW Barber in 'Laws and Constitutional Conventions' (2009)

NW Barber in 'Laws and Constitutional Conventions' (2009) suggests that conventions can become formalised over time as political actors create authoritative statements of their content and mechanisms which can create, modify, and adjudicate upon, these rules. His comments are particularly based on the publication of the Ministerial Code which contains many constitutional conventions governing the conduct of ministers.

Other legal sources of constitutional Law

Other legal sources of constitutional Law consists of: The law and custom of Parliament

Enforceability and the distinction between laws and conventions

Sir Ivor Jennings in Cabinet Government (1969) said that constitutional conventions are outside the law and not recognised by it. Cases like Watt v Kesteven Company Council (1955) claim that not all legal provision confer directly enforceable rights on the individual. The Court of Appeal had to decide whether a local education authority was in breach of statutory duty because it had failed to provide education for pupils in accordance with the wishes of their parents as required by s 76 Education Act 1944.

Manuel v Attorney General (1982): Slade LJ's Judgment

Slade LJ rejected the argument saying that it was 'quite unsustainable in the courts of this country.'

Attorney General v Jonathan Cape Ltd [1953]

The Attorney General sought injunctions to restrain the publication of the diaries of a former Cabinet Minister.

Attorney General v Jonathan Cape Ltd (1975)

The Attorney General sought permanent injunctions restraining the publishers Jonathan Cape Ltd as well as a newspaper from publishing the diaries or extracts from the diaries of former Cabinet Minister Richard Crossman. The diaries contained accounts of disagreements on matters of policy and details of discussions concerning the appointment of senior civil servants. The Attorney General argued that all Cabinet papers, discussions, and proceedings were confidential and the court should restrain any disclosure if the public interest in concealment outweighed the public interest in the right to free publication. The relevant constitutional convention was joint Cabinet responsibility: any policy decision reached by the Cabinet has to be supported there after by all members of the Cabinet whether they approved it or not, unless they feel compelled to resign.

The Characteristics of the British Constitution

The British Constitution is unwritten, flexible, monarchial, unitary, subordinate to the legislature and based on a partial or limited degree of separation of powers.

McCawley v The King [1920]

The Privy Council had to decide whether or not Legislature of Queensland Australia had power, under s5 Colonial Laws Validity to authorise the appointment of a judge of the Supreme Court for a limited period.

Madzimbamuto v Lardner Burke [1969]

The Privy Council had to decide whether the UK Parliament could legislate for Southern Rhodesia, following the Unilateral Declaration of Independence.

Standing Orders of the House of Commons and the House of Lords

The Standing Orders of the House of Commons and the House of Lords set out how the business of each House can be best carried out and determine the current rules of debate. The Standing Orders of each House are like a set of internal status.

Miller Case: Judgment from Supreme Court

The Supreme Court held that the UK Parliament, in recognising the Sewel Convention in s2 Scotland Act 2016 did not intend to it to become law.

R (Secretary of State) v Miller [2017]

The Supreme Court held that, 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 manner, through a combination of statutes, events, conversations, academic writings and judicial decisions. When coming to this opinion, the Supreme Court supported the view expressed by AV Dicey, that British Constitutional law is 'the most flexible polity in existence.

UK's System of Government

The UK's system government, which is a unitary state with an unwritten and flexible constitution is based on the sovereignty of Parliament.

Further Characteristics of the British Constitution

The United Kingdom has a parliamentary system of government allowing political parties based on divergent political theories to participate and contribute to the process of debates and making laws. The executive is accountable to both Parliament and the courts for the way it exercises its powers. Pluralistic political ideas, prohibiting discrimination and promoting fair and impartial judicial procedures underpin the rules governing the relationship between the citizen and the state especially concerning civil and political rights.

Unitary Constitution in the context of the United Kingdom

The Westminster Parliament and the departments of state headed by the Prime Minister, Secretaries of State and other ministers, run the country as a whole.

The common law

The binding rules formulated and applied by judges in decided cases in senior courts have a made a vital contribution to the development of constitutional law. Examples of areas heavily influenced by judicial decision-making include the use of the royal prerogative by the executive, the rule of law, the separation of powers and parliamentary sovereignty.

R (on the application of Southall) v Secretary of State for Foreign and Commonwealth Affairs (2003)

The claimant said that the British Government was bound by constitutional convention that it would not introduce legislation making substantial constitutional changes without the approval of the electorate in a referendum unless the proposal was included in its election manifesto. The Court of Appeal held that there was no evidence to support the existence of such a convention.

Consequences of the Unitary Constitution system

The concept of devolution was created. The Westminster Parliament has transferred some of its law-making powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. Some of the work done by the central government departments of state for the whole United Kingdom has been transferred to the Scottish and Welsh Governments as well as to the Northern Ireland Executive. In London, powers have been given to the Greater London Authority, consisting of the Mayor and the London Assembly.

Thomas Paine: The Rights of Man (1791)

The constitution is an antecedent act of the people which creates the government, defines its powers and grants it the right to exercise them.

The constitutional role of courts

The constitutional role of the courts when interpreting statutes, was explained by Lord Nicholls in R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions (2001).

R (on the application of Spath Holme Ltd) v Secretary of State for the Environment, Transport and the Regions (2001): Lord Nicholls' statement

The court must ascertain the intention of Parliament. Under normal circumstances the courts will not look at what was said or done in Parliament itself. The judges give the words in a statute their ordinary and natural meaning. The approach is an objective one. The question is whether it is reasonable for a statute to be interpreted in a particular way.

Watt v Kesteven Company Council (1955): Munro's response

The court refused to recognise an actionable statutory duty because the law said that the duty should not be enforced in this way. The law was enforced. The courts obeyed the law and put it into effect.

R(on the application of Miller) v Secretary of State for Exiting the European Union (2017): Key Principle

The courts can recognise the operation of a political convention when deciding a legal question but they cannot give legal rulings on its operation or scope. The validity cannot be the subject of proceedings in a court of law.

Distinction between written and unwritten constitutions

The distinction between written and unwritten constitutions does not focus on whether or not constitutional law is contained a document or several documents. Instead it focuses on the type of legal document used and the legal status of its contents.

Sir Ivor Jennings Cabinet Government (1969)

The existence of a constitutional convention can be determined by asking what are the precedents, do the actors in the precedent believe they are bound by a rule and is there a reason for the rule? The test was accepted and applied by the Supreme Court of Canada in Reference re Amendment to the Constitution of Canada (1982).

Decision of the United States Supreme Court in Marbury v Madison (1803)

The key constitutional principle, stated by Chief Justice Marshall is that 'an act of legislature repugnant to the constitution is void.' This is not written in the Constitution of the United States.

Attorney General v Jonathan Cape Ltd (1975): Legal Principle + Action

The key principle is that the courts have jurisdiction to restrain publication will be a breach of confidence and second, that there is no other facet of the public interest in conflict with and more compelling than that relied upon. The judge decided to refuse to grant the injunctions. The contents of the first volume of the Crossman Diaries were such that their publication, after the lapse of nearly ten years could not inhibit free discussion in the existing Cabinet and would not, therefore, prejudice the maintenance of the doctrine of joint Cabinet responsibility.

The sources of Constitutional Law

The legal sources of constitutional law consists of: 1) Constitutional Statutes 2) Case Law 3) Other Sources

The other sources governing parliamentary procedure

The other sources governing parliamentary procedure are: 1) Ancient Usage 2) Standing Orders of the House of Commons and the Standing Orders of the House of Lords 3) Speakers' Rulings in the House of Commons

Speakers' Rulings

The rules governing the election of the Speaker of the House of Commons are contained in the Standing Orders of the House of Commons. As far as the House of Commons is concerned, the rulings of the Speaker on points of which are recorded in Hansard form a third source of parliamentary procedure. There is no equivalent in the House of Lords. The Lord Speaker may not give rulings. Speakers' rulings are the parliamentary equivalent of case-law.

Ibralekke v R (1964)

The second principle is supported by the Privy Council decision. This case arose out of certain criminal appeals from Ceylon (now Sri Lanka). Basnayake CJ, in the Court of Criminal Appeal of Ceylon, held that, in effect, when Ceylon ceased to be a colony and became an independent sovereign state within the Commonwealth m the right of the Crown to hear appeals ceased. The Judicial Committee of the Privy Council took jurisdiction and in doing so took into account the constitutional convention that the Order in Council accepting the Report of the Privy Council turns its report into the equivalent of a judgment of a court.

Constitutions based or not based on the separation of powers

The separation of powers presupposes that a system of government is divided up into three functions with three corresponding organs. The functions of government are legislature, executive and judicial and the corresponding organs of government are the legislature, executive and judiciary. In such a system the legislature, the executive and the judiciary should check and balance each other as they exercise their powers independently. Not one person should be able to exercise power over all the organs and functions of government. The real value of the separation of powers lies in its potential to prevent tyranny. In this situation the term tyranny means government subject to the personal interests and ambitions of an individual or small group which exercises wide discretionary and arbitrary powers. The separation of powers promote government which serves the people as a whole and not just the elite.

The sources for Case Law

The sources for Case Law consists of: 1) Common law Principles 2) Cases of statutory interpretation 3) Decisions of the CJEU 4) Jurisprudence of ECHR

The sources for Constitutional Statutes

The sources for Constitutional Statutes consists of: 1) Acts of Union 2) The relationship between the citizen and the state 3) Fundamental human rights

Sources of Constitutional Law

The sources of constitutional law in the UK are: 1) The common law 2) Acts of Parliament 3) European Union law 4) The jurisprudence of the European Court of Human Rights which must be taken into account by the UK courts in cases involving the European Convention on Human Rights and Fundamental Freedoms. 5) The law and custom of Parliament

McCawley v The King [1920]: Legal Principle

There are constitutions which contain clauses requiring a special procedure and, in some cases, a special legislative assembly to amend them. Countries like the United Kingdom have no special procedure for making, amending and repealing constitutional law. Constitution which require a special procedure are controlled constitutions. Those which do not require a special procedure are uncontrolled constitutions. The appointments were valid.

KC Wheare, in The Statute of Westminster and Dominion Statutes, 5th edn (1953)

There are usages and conventions. A constitutional convention is binding. A usage is a non-binding rule of political practice. A usage may become a convention from a single precedent or agreement. Many authorities have adopted a similar approach.

R (on the Application of Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003]: Legal Principle

There is no seriously arguable case that a court will determine that an Act of Parliament passed without first having been the subject of a referendum or being included in a party manifesto will for that reasonable unenforceable as a matter of law. There is nothing to substantiate that such convention has the force of law.

Localism Act 2011

These grant a general power of competence to the local authorities. Meaning that local authorities have the right to do anything an individual person over the age of 18 can do unless its forbidden by law.

R (on the Application of Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003]

This was an appeal from the Administrative Court which had refused permission to proceed with judicial review. One of the issues was whether it is convention of the constitution of the UK that a substantial constitutional change cannot be made (and therefore cannot be adopted) unless such a proposal has been approved by the electorate either as a result of the proposal being included in the manifesto of the party returned to government or in a referendum.

Manuel v Attorney General [1982]

This was an attempt to question the legality of the Canada Act 1982 in the British courts by a minority group within Canada. It was suggested that the convention that the UK Parliament should not legislate for Canada except with its consent, might by formal recognition or by long acceptance have crystallised into a law.

Marbury v Madison (1803): Chief Justice Marshall's Statement

Those who draft written constitutions intend them to be the fundamental law of the state. Meaning that they have special legal status.

Marbury v Madison (1803): Legal Principle

Those who draft written constitutions intend them to be the fundamental law of the state. Any act of the legislature which is repugnant to the constitution is void. The US Supreme Court has the jurisdiction to review acts of Congress and determine whether they are unconstitutional and therefore void.

Rules made by the European Court of Human Rights

Under s2 Human Rights Act 1998 the UK courts are obliged to take into account all the rules laid down by the European Court of Human Rights when considering a claim involving the rights contained in s 1 and Sch 1 Human Rights Act 1998. This has meant that new rules, such as those on proportionality, ave found their way into UK constitutional and administrative law.

Reference re Amendment to the Constitution of Canada (1982)

Until the Canada Act 1982 came into force any amendments to the constitutional statutes of Canada had to be approved by legislation in the UK Parliament. In this case the Supreme Court of Canada had to decide whether the Canadian Federal Government was obliged to consult the province and obtain their agreement before requesting an amendment which would affect the relationship between the Federal Government and the provinces. After applying the Jennings' test, a majority of the Supreme Court concluded that the alleged constitutional convention existed and that it would be unconstitutional for the proposals to go forward. The court did not enforce the convention. This was beyond the constitutional role of the judges.

Unwritten Constitutions

Unwritten Constitutions are never solely based on oral customs and traditions.