Administrative and Constitutional Law - Law 1220
Dicey's definiton of the rule of law - pt 2
"...equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts."
Dicey's definiton of the rule of law - pt 1
"...the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power....a man may with us be punished for a breach of the law, but he can be punished for nothing else."
Dicey's definiton of the rule of law - pt 3
"...the law of the constitution...are not the source but the consequence of the rights of individuals, as defined and enforced by the courts....the constitution is the result of the ordinary law of the land."
what did Lord Justice Laws say re constitutional statutes.
"The basic rule doesn't apply to constitutional statute"
How does this arguably resemble a partially written const?
In the sense that: -Government is regulate, the powers of the devolved legislatures and executives are limited by these statutes; -Arguably, government is established - the devolved legislatures and executives are created by these statutes.
To what extent does the Rule of Law actually apply to government?
"The two most fundamental functions of the executive are the maintenance of the defence of the realm and of the rule of law..." Bank Mellat v Her Majesty's Treasury (No. 1) (2013) UKSC 38, Lord Neuberger at para 53 (secret courts)
s4(2) HRA 1998
(2)If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility
s4(6) HRA 1998
(6)A declaration under this section ("a declaration of incompatibility")—
s4(6)(a) HRA 1998
(a)does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
s4(6)(b) HRA 1998
(b)is not binding on the parties to the proceedings in which it is made.
key provisions of the HRA 1998
- s2 - s3 - s4 - s6 - s19
Issues with const conventions - bind
-Constitutional Conventions are defined by those who they bind. +understood by constitutional lawyers that, according to constitutional convention, ministers should take responsibility for any failings of their own departments and, if the failing is sufficiently serious, should resign +In 1995, Michael Howard, the Home Secretary, did not resign following the precedent of Dugdale and Carrington +He stated that ministers are only required to resign if errors are caused by policy failings, as opposed to operational failings. That distinction, it is argued, now forms part of the convention.
s4(1) HRA 1998
1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right..
s2(1) HRA 1998
A (UK) court or tribunal determining a question which has arisen in connection with a Convention right must take into account any— (a )judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) Opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) Decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) Decision of the Committee of Ministers taken under Article 46 of the Convention, Whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
s19 (1) HRA 1998
A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—
What is a constitution?
A constitution is the start of modern democracy
What did R v Miller agree?
Agreed that yes, there are constitutional statutes Yet: •Why do we have constitutional statutes? •Why do they matter? •Are constitutional statutes those that are harder to make and repeal? oWould a referendum be needed to repeal one? •Would we need specific parliamentary procedures for extra scrutiny as constitutional statutes are so important?
Who do const conventions bind?
Binding upon those who operate the constitution
Wheare definiton of constitution
British Constitution '...the whole system of government of a country, the collection of rules which establish and regulate or govern the government' (KC Wheare Modern Constitutions (1966) 1).
How does it produce legal effects?
By influencing the interpretation of legislation as courts will interpret legislation in line with the rule of law as far as possible as well as also determining the validity of government action and legislation enacted by most lawmaking bodes (due to the fact it can be struck down if incompatible with the RoL)
What case comfirmed these principles?
Confirmed by the Supreme Court in R (Miller) v Secretary of State for Exiting the EU [2017]
When are Constitutional conventions particularly important?
Constitutional conventions are particularly important when regulating issues of ministerial responsibility
Why are const conventions obeyed? Positive reason
Conventions ensure that the legal framework of the constitution is operated in accordance with the prevailing constitutional values of the time (Reference re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1, 84). (positive reason)
What does the HRA 1998 not do?
Create civil liberties and human rights in the UK. •Civil liberties have been protected by the UK common law for hundreds of years and, crucially, this would subsist if the Human Rights Act were to be repealed; •Create adherence to the ECHR. •The UK had signed and ratified the Treaty by 1951 and accepted the jurisdiction of the European Court of Human Rights (ECtHR) in 1965. • It is thus bound by the ECHR as a matter of international law, whether the Human Rights Act exists or not.
What do devolved territories have the power to do?
Devolved territories have the power to make legislation relevant to the area.
What is devolution?
Devolution is the statutory delegation of powers from the central government of a sovereign state to govern at a subnational level, such as a regional or local level
What are 2 important and relevant categories of constitutional statutes to consider?
Devolution statutes Human Rights Act 1998
What are devolution statutes?
Devolution statutes are legislation that devolves, or vests, certain functions to democratically elected and accountable Parliaments, Assemblies and Executives in the relevant countries
Why does it matter if devolution statutes are constitutional statutes?
Devolution statutes are more difficult to change
Why do we consider devolution statutes to be constitutional statutes?
Devolution statutes specify the powers and competences of devolved bodies
s2 HRA 1998 main point
Doesn't say that UK courts have to on every occasion follow, on precedent, the ECHR -but the ECHR must influence decisions.
Where do we find constitutional rules?
In Britain, the constitution is distinctive because of where the rules are found; there is a common law constitution meaning that there is no written or physical constitution Whereas in territories such as America, the constitution is written and can be shown and purchased in a physical format. It has a position of hierarchical superiority within the legal system of the state (thought of as the most important form of law) and everything therefore must conform to it.
What is the prerogative in constitutional law?
In constitutional law, there is a more precise meaning: the Royal, or Crown
What does convention mean in international law?
In international law, a convention is an agreement or a treaty - such as the European Convention on Human Rights
What is devolution a form of?
It is a form of administrative decentralization.
s6 (1) HRA 1998
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Entick v Carrington
Known as one of the most important constitutional cases in the world. Held that everyone is bound by the law.
Written Sources of the British Constitution
Legislation/statutes Case-law
What did Lord Justice Laws believe? Was he right?
Lord Justice Laws believed it to be constitutional statute however it is not
s3 HRA 1998 main point
Means that if the court are trying to apply a provision of British law, and they are trying to work out what it means ie there are 2 possible interpretations of it (one complying with the convention and one not) they must always chose the interpretation complying with the convention
Why is the rule of law the most elusive of the main const principles?
Most people agree that is a good thing whilst simultaneously disagreeing as to what it is
was the triggering of article 50 permitted to be completed with prerogative powers in Miler?
No, it was held to be a 'fundamental constitutional change' are therefore shouldnt be completed with prerogative powers .
Are const conventions enforceable by the courts?
No, they are not enforced by the courts.
What law is const law?
Ordinary law
What is recognised as particular importance re devolution statutes?
Particular importance recognised through referenda - not legally required. •Does this mean a referendum would be required to repeal?
What are the 2 types of prerogatives?
Personal prerogatives Executive prerogatives
What are prerogative powers?
Powers which are held exclusively by government.
Unwritten sources of the British Constitution
Prerogative Powers Conventions Underlying principles
Should "all classes" be taken more broadly?
Should not be taken more broadly - e.g. to cover gender, race or other grounds considered in the Equality Act 2010.
Why are const conventions obeyed? Negative reason
Sir Ivor Jennings: "Conventions are observed because of the political difficulties which would arise if they were not" (The Law and the Constitution(1959) 134). (negative reason)
s3(1) HRA 1998
So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.
What are constitutional Statutes ?
Some rights are constitutional, (i.e. fundamental); thus, statutes conferring these rights are constitutional, and thus hierarchically superior to ordinary statutes
AG v de Keysers Royal Hotel [1920] AC 508
Statute will always prevail over prerogative powers
What does the HRA 1998 do?
The Human Rights Act gives internal effect to the UK's membership of the European Convention on Human Rights (ECHR).
Which select committee produced the Fourth Report?
The Parliamentary Select Committee on Public Administration
Where have most constitutional powers been passed to? (historically over time)
The government
What happens when 2 constitutional statutes contradit each other?
The later statute is precedent
What is there an argument about re devolution in the UK?
There is an argument that Britain need better rules of devolution and we "need a written constitution"
What are constitutional conventions defined by?
They are defined by those they bind
What does the Ministerial Code (May 2010) do?
This records, rather than creates, the convention, but can evidence it
What does the HRA 1998 allow and require?
UK judges to apply the ECHR directly, rather than leaving it up to the ECtHR. Human rights are thus protected by British courts, rather than forcing UK citizens to rely on the ECtHR.
Paine's definition of a constitution
USA const "A constitution is not the act of a government, but of a people constituting a government, and government without a constitution, is power without right." (Thomas Paine The Rights of Man p 174) likely to believe UK const isnt a cont as not the act of people
What are the range of sources in the UK where constitutional law has been created?
Unhoded (unwritte) Written Common law (practice, court decisions, scholarly debate)
Do these sources have hierarchal superiority?
Very little, if any.
How do you identify a constitutional convention?
We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?' (Sir Ivor Jennings, The Law and the Constitution (1959) 136).
Can something be unconstitutional but not challenge-able?
Yes
Is devolution uneven?
Yes oEngland is not devolved, although Scotland, Northern Ireland and Wales are. oYet the power given to Scotland is more than the powers given to wales and NI
Does "all classes" mean that the government is subject to the law just like anyone else?
Yes, it does.
Thorburn v Sunderland City Council
a perfectly standard argument of constitutional law It was ruled that there is a hierarchy of statutes: there are regular statutes, which can be impliedly repealed; and 'constitutional' statutes which can only be expressly repealed
Minister's main executive powers A to C
a) The making and ratification of treaties. b) The conduct of diplomacy, including the recognition of states, the relations (if any) between the United Kingdom and particular Governments, and the appointment of ambassadors and High Commissioners. c) The governance of British overseas territories.
What do constitutional statutes affect?
affect the relationship between the individual and the state in some general way and/or expand or contract existing constitutional rights.
What is the West Lothian Question also known as?
also known as the English question
Minister's main executive powers D-F
d) The deployment and use of the armed forces overseas, including involvement in armed conflict, or the declaration of war. (The Royal Navy is still maintained by virtue of the prerogative; the Army and the RAF are maintained under statute.) e) The use of the armed forces within the United Kingdom to maintain the peace in support of the police. f) The Prime Minister's ability to appoint and remove Ministers, recommend dissolutions, peerages, and honours (save for the four Orders within The Queen's own gift), patronage appointments (e.g. in the Church of England), and the appointment of senior judges.
Ministers' main executive powers G- J
g) Recommendations for honours by the Foreign and Commonwealth Secretary and the Defence Secretary. h) The organisation of the civil service. i) The grant and revocation of passports. j) The grant of pardons (subject to recommendations by the Criminal Cases Review Commission) and the Attorney-General's power to stop prosecutions
Why is Lord Justice Laws wrong?
it was not passed in any particular way, it is a manifesto commitment from the Labour party who were elected into government in 1997. It allows judges to enforce the ECHR against the Government however it doesn't list rights it provides a mechanism allowing the UK to use human rights in courts.
What did the report list?
listed Ministers' main executive powers
s19(1)(b) HRA 1998
make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill
s19(1)(a) HRA 1998
make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights ("a statement of compatibility"); or
What is devolution distinct from?
oFederalism Where states have broadly the same powers oDecentralisation Where power is given to regions, even as power held by a region or government
What has the british constitution traditionally been a product of?
political practice, not legal regulation.
Where are conventions relating to the conduct of Gov Mins recorded?
recorded in the Ministerial Code (May 2010)
which is the most power section of the HRA?
s6
What is the rule of law?
that everyone, private individuals, corporations and government, is subject to the law - there is no privilege
What is the 'dignified' part of the constitution?
the monarch
"all classes"
the same law, and the same courts, are applicable to all people. No special courts, no special law.
What does the West Lothian Question refer to?
whether MPs from Northern Ireland, Scotland and Wales, sitting in the House of Commons of the United Kingdom, should be able to vote on matters that affect only England, while MPs from England are unable to vote on matters that have been devolved to the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly
What do constitutions do?
•Establish government by oGiving individuals power (eg prime ministers, ministers, MPs) oRegulating the government; ensuring people don't exude the power they have been given and by ensuring that government does not interfere excessively with individual and collective liberty- most constitutions contain some level of human rights law.
However, what did the HRA 1998 do?
•Get passed very quickly •Have cross party support
Key developments in devolution - Government of Wales Act 2006
•2006 Act creates a separate Welsh government to implement the Welsh Assembly's legislation •In 2011 further powers were devolved to Wales, after a referendum, including powers in some areas to make primary legislation on specified topics.
Key developments in devolution - Northern Ireland Act 1998
•A referendum in 1997/1998 lead to a power sharing government, set up by the Belfast/Good Friday agreement of 1998 oThis put an end to the trouble in NI during the 60s/70s/80s •Northern Ireland Assembly and the Northern Ireland Executive oIs a compulsory coalition to ensure that both unionist and nationalist views are represented within the government of Northern Ireland oIn January 2017, the powersharing government split due to disagreements over an energy funding project - this split has not yet been resolved and is currently being run by the Minister of NI oThe unionists don't want too much power
Issues with const conventions - enforced
•Constitutional Conventions are not enforced by the courts.... o"Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question (as in the Crossman diaries case -Attorney General v Jonathan Cape Ltd [1976] 1 QB 752), but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. As Professor Colin Munro has stated, "the validity of conventions cannot be the subject of proceedings in a court of law" (1975) 91 LQR 218, 22" (Miller, para 146)
Key developments in devolution - Government of Wales Act 1998
•Devolution of some executive power to Wales approved by a referendum in 1997, with a majority of 50.3% in favour of devolution - very tight. o A previous referendum in 1977 failed. •1998 Act gives the Welsh Assembly given the power to make secondary legislation but all has to be approved by Westminster which gives them very limited power. o The referendum created concern by Welsh people on the issues of the economy and identity.
key developments in devolution - Scotland Act 2016
•Immediately prior to the Independence Referendum of 2014, a cross-party "vow" was made to the people of Scotland, promising that, if the vote in the referendum was no, the Scottish Parliament would be given "extensive new powers". •The Scotland Act 2016 is the response to this 'vow', by amending the 1998 Act to include the following elements: •To formally acknowledge making devolution in Scotland permanent However it is argued that there are issues with structural permanence - surely it shouldn't be able to be changed at will, there should be a clear, written constitution. •By stating the Scottish Parliament and the Scottish executive cannot be abolished except following a referendum of the Scottish people •To pass into law recognition of the Sewell Convention Meaning that Westminster can't overrule laws made my Scottish Parliament. •To devolve further matters to the Scottish Parliament and executive. •A core aspect here is the feature of structural permanence of the devolution system: it is becoming harder and harder to unravel.
Rules in the British constitution can be changed very quickly, but should they?
•It gives flexibility to the law and makes it easier to change old and outdated legal rules •Yet would a new constitutional settlement require, or be helped by, a written constitution? •Although, in the USA it is virtually impossible to amend and requires legal action from the Supreme Court which is difficult and could potentially allow scope for judicial law making.
What sorts of things do constitutional rules need to do?
•Manage relationships between different parts of the same state - e.g. through a federal, devolved or decentralised system. •Control the powers of heads of state, whether monarchs or presidents. oIn particular, in a monarchy such as the UK, which is also governed on the principle of democracy and limited government, the constitution needs to provide rules to limit the power of monarchy and promote democracy. oIn a Republic, the matter depends on the nature of the President's democratic mandate, and his/her relationship with the other parts of government. •Divide up power between different institutions of government: President, Prime Minister, Parliament - What types of institution exist in a constitutional system, and which has what sort of power?
Example of the West Lothian Question
•One example is when England's university tuition fees were raised from £3000 to £9000 (later £9250) oThis change was because of the Scottish MPs vote, which was controversial as it didn't affect the tuition fees in Scotland. •It was suggested that there should be an introduction of an English MPs committee stage for matters only concerning England, similar to devolution but without any official devolution as to do so would likely mean breaking up England which would be particularly difficult oHowever it was argued that it would create "2nd class MPs" - particularly those in Scotland as they feel excluded.
Examples of Devolution statutes?
•Scotland Act 1998 and 2016 •Government of Wales Act 1998 and 2006 •Northern Ireland Act 1998
Key developments in devolution - Scotland Act 1998
•Scotland has the most devolution •Devolution of executive and legislative power approved by referendum in 1997. oThere was a stronger vote for yes. •The referendum create the Scottish Assembly, which is now the Scottish Parliament and the Scottish Government. •The Scotland Act specifies a list of reserved matters, over which the Scottish Parliament has no power. o All other matters are devolved and can be legislated on by the Scottish Parliament. oThe Scottish Parliament also limited tax varying powers, although it has not used them.
What does the Welsh assembly have the right to do?
•The Welsh Assembly has the right to pass laws in certain key areas, including: economic development, education and training, environmental and planning matters, health and health services, housing, social welfare
s4 HRA main points
•Won't change the legislation but can only declare in incompatible and will only do so if they believe it is the appropriate thing to do. •Important as shows limit of the human rights act