1. The UK constitution is described as an unwritten one. Explain with reference to the legal sources of the UK constitution and appropriate examples, why it is called unwritten, and consider whether the distinction between a written and unwritten constitution is legally significant.
The word 'constitution' has many different meanings, however only two of them are applicable to constitutional law. Firstly, 'constitution' could mean a written document which contains the rules and principles according to which a country is run. Secondly, the word 'constitution' could refer to:
"the body of rules and arrangements concerning the government of the country."[1]
The second definition does not impose any requirement of writing. It should be stressed that although some states do not have a written constitution every country in the world, including the UK, has a constitution in the second sense of the word. Over the centuries the attitude towards the British/English constitution ranged from admiration to sever criticism. Thomas Paine went even further, he ruled out a possibility that an English constitution could exist.[2] The British constitution has been sometimes described as ‘political.’ Griffith believes the word ’political’ can be used to refer to a wide range of qualities, e.g. the UK constitution assumes equality of all citizens and many important rules are not legal rules. He also stressed that operation of the constitution is closely linked to Parliament and Parliamentary elections, this leads to a conclusion that the British constitution must be analysed in the political context.[3]
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The UK constitution draws on a wide range of sources: statutes, common law, the royal prerogative, international treaties and agreements, conventions and academic texts written by legal experts. As an expression of Parliament’s will statutes are the most important source of law, some of them have a particular constitutional significance, e.g. the Magna Carta 1215, the Act of Settlement 1701, the Representation of the People Act 1983 and the Human Rights Act 1998. Another written source of law is case-law. Although judges should merely interpret the law, and not get involved into a law making process, many crucial legal principles have been established in the course of legal proceedings, for example in British Railways Board v Pickin[4] Lord Reid said that the courts have no power to overrule Acts of Parliament on any grounds. International treaties and agreements, such as for instance the Treaty of Rome 1957, have also become a source of English law; similarly, texts written by legal experts may acquire exceptional legal significance, e.g. Dicey's An Introduction to the Study of Law of the Constitution.
The unwritten sources of the UK constitution are the royal prerogative and conventions. The royal prerogative stems from the powers which used to be exercised exclusively by the monarch and which are now exercised by the ministers on the Queens behalf. The examples of the royal prerogative are the power to declare war, the control over the appointment of ministers and the right to dissolve Parliament. The legal nature of conventions is somewhat different, they are non-legal norms which should be obeyed by those to whom they apply; although conventions cannot be enforced by the courts they are usually respected. As the above discussion illustrates, a large part of the constitution is written. However, due to lack of a separate document which could be called a constitution this fact is often disregarded and the UK constitution is said to be unwritten.
The unwritten character of the UK constitution, or rather the existence of unwritten rules, has serious legal implications. The first point to note is that Parliament can pass and revoke the law as it sees fit. Until recently the British constitution did not guarantee any rights; although an Act, called the Bill of Rights, was enacted as early as 1688 it dealt exclusively with issues related to Parliament and Crown. This meant that, in theory, Parliament could pass any legislation it considered appropriate even if it infringed rights of UK citizens. Prior to the enactment of the Human Rights Act 1998 the only limitation on the Parliamentary sovereignty in cases involving of human rights violation would have been the rule of law. However, effectiveness of the rule would have been limited if the courts, wanting to avoid interference with Parliamentary decisions, refused to enforce it. This should be juxtaposed with countries which have written constitutions and where rights of ordinary citizens are protected by specially drafted provisions.
In addition to being uncodified the UK constitution is flexible and unitary (provided devolution is not taken into account) but it is not entrenched. The result is that while written constitutions are rigid the UK constitution is flexible, an advantage of flexibility is that any necessary changes can be introduced quickly and relatively easily. On the other however, lack of entrenchment leaves a lot of power in the hands of a small group of people. Moreover, unwritten constitutions always involve a degree of vagueness, the situation is made worse by the fact that norms which are not written cannot be enforced by the courts. These problems do not arise if the constitution is written, yet it does not follow that all the relevant law can be found in the constitution. Munro argued:
“It ( ) also suggested, wrongly that in countries such as the United States, all the rules and arrangements concerning government had been reduced to writing in a single document. In practice, this is never the case.”[5]
Both written and unwritten constitutions rely on the legal precedent, they are formed and modified by judicial interpretations of the law and political practices.
The UK constitution is said to be 'unwritten' however as has been shown above it is not, strictly speaking, true. The constitution relies on a wide range of sources and most of them can be found in writing. It has already been mentioned that the constitution can be described as political, yet following developments such incorporation of the European Convention on Human Rights, membership of the European Union and changes which took place post-1997, more and more constitutional rules are being codified. Thus, according to Munro the UK constitution is becoming ’legal.’[6] It is, therefore, submitted that the gap between the unwritten British constitution and the written constitutions in other countries is gradually becoming narrower. The new EU constitution may close this gap entirely.
BIBLIOGRAPHY
TEXTBOOKS
Munro, Colin R, Studies in Constitutional Law, Butterworths, second edition, 1999.
ARTICLES
Griffith, John, The political constitution, (1979) 42 MLR 1.
CASES
British Railways Board v Pickin [1974] AC 765, [1974] 1 All ER 609.
STATUTES, TREATIES AND CONVENTIONS
1215Magna Carta
1688Bill of Rights
1701Act of Settlement
1950 European Convention on Human Rights
1957Treaty of Rome
1983Representation of the People Act
1998Human Rights Act
2. Explain the doctrine of ministerial responsibility to Parliament. Consider whether it should be constitutionally necessary for Ministers to defend their decisions in judicial review claims before a court, as well as answering to Parliament for those decisions.
Ministerial responsibility can be either collective or individual, since it is a convention it is unwritten and unenforceable in the courts of law. The operation of the doctrine can be described as follows:
“Ministers are responsible for the general conduct of government, including the exercise of many powers legally vested in the Monarch; and ultimately, through Parliament and parties, to the electorate”[7]
The convention of ministerial responsibility has a historical origin, it is a product of tradition and a multitude of historical events. In the nineteenth century ministerial departments used to be very small and the ministers’ workload was limited, in this circumstances it was not unreasonable to expect ministers to be responsible for all their civil servants; this explains how the doctrine of individual ministerial responsibility was born. Collective ministerial responsibility can be traced back to the ministers’ relationship with the Monarch, in the past the sovereign played a role of the Prime Minister and ministers were expected to answer to him.
A minister who fails in the performance of his duties has four options: he can explain the situation to Parliament, apologise to Parliament, choose to take action or, in extreme cases, resign. The convention of individual ministerial responsibility has often been found problematic, it is not always clear when, and for what reasons, ministers should resign. It is debatable whether they should resign due to problems in their departments or only if they fail to accomplish tasks for which they are personally responsible. In the past ministers could not be excused from responsibility for their own civil servants, however following the Crichel Down affair (1954) the convention no longer seems to be so severe. It can even be argued that as ministers begun to refuse to resign there has been a shift towards the other extreme. In 1983 James Prior did not hand in his resignation over the Maze Prison escapes. In his view the fallings of the prison system resulted from an inadequate policy.[8] The Scott report also had an effect of limiting ministerial responsibility, it concluded that ministers should continue to answer to Parliament but they should no longer be personally responsible for the mistakes of their subordinates. The Nolan Report on the other hand deepened the extent of ministerial responsibility, it stated that ministers should avoid conflicts of interests and bear in mind the impact which their private lives may have on their ministerial positions.[9]
The past few years have seen an increasing drive towards accountability, transparency and codification. Thus, in 1992 a decision was taken to publish the previously confidential Questions of procedure for ministers. The Questions, which are now known as Ministerial Code: A Code of Conduct and Guidance on Procedures for Ministers, provided guidance for ministers and played a role of a partly codified convention. In 1995 the Code was amended and the new version instructed ministers not to intentionally misinform Parliament. Appointment of Select Committees also had an impact on ministerial responsibility, the Committees can conduct their own enquiries, question ministers and interview witnesses. At the same time, however, complaints have been made regarding the availability of witnesses and access to documents. The doctrine of collective ministerial responsibility is based on three main principles: the confidence principle, the unanimity principle and the confidentiality principle. The fist principle presumes support of the House of Commons as long as the Government does not receive a vote of no confidence. The second principle imposes an obligation on ministers to vote unanimously while the confidentiality principle demands that any discussions which take place in Cabinet remain confidential. A good example of a breach of the convention of collective responsibility is Clare Short’s disapproval for the war in Iraq.
Judicial review can be described as a process of challenging decisions of public bodies, public bodies include the executive but not Parliament. Judicial review proceeding are conducted by the Divisional Court of the Queen's Bench. It should not be confused with an appeal procedure, judicial review involves an assessment of the legality of a decision. There are three grounds on which the court can declare a decision ‘unlawful:’ illegality, irrationality and procedural impropriety. Illegality arises when the law has been misunderstood or misinterpreted and therefore applied incorrectly, irrationality applies to cases where the judgement appears unreasonable or unfairness, while procedural impropriety refers to cases involving bias.
Following the judgement in R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council[10] even discretionary ministerial powers can now be challenged in the process of judicial review. Nevertheless, review of ministerial powers will not be possible in cases involving political decisions, national security or government policy. In R v Director of GCHQ ex parte Hodges[11] one of the judges said:
"I apprehend for myself that the majority of their lordships were of the view that once it had been established by evidence that a decision had been made on behalf of Government in the interests of national security the whole ambit of that decision was one which the courts can neither enquire nor intervene."
It is undisputable that the GCHQ case is a groundbreaking decision, instead of concentrating on the source of the power the courts have been encouraged to focus on its nature.
Many forms of scrutiny of the ministerial power are already in place, ministers answer to Parliament, they are subject to judicial review and in cases of serious misconduct they may be investigated by the Select Committees. As regards the breach of conventions the sanctions are political rather than legal, this means that conventions may be ignored and courts are unable to compel the executive to obey them. Yet, ministers may be subjected to political pressure, Clare Short resigned two months after her Iraq war announcement while Sir Thomas Dugdale resigned over the Crichel Down affair. In the later case the process of Parliamentary scrutiny was as a result of pressure exerted by backbenches. In these circumstances, it does not seem necessary for the ministers to answer to Parliament as well as be subjected to judicial review.
BIBLIOGRAPHY
TEXTBOOKS
Munro, Colin R, Studies in Constitutional Law, Butterworths, second edition, 1999.
ARTICLES
Oonagh Gay, Thomas Powell, Individual ministerial responsibility - issues and examples, Research Paper 04/31, (2004).
Oonagh Gay, Thomas Powell, Collective responsibility of Ministers - an outline of the issues, Research Paper 04/82, (2004).
CASES
R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 AC 521.
R v Director of GCHQ ex parte Hodges (1988) QBD.
3. Explain whether devolution has had any impact on the sovereignty of the Westminster Parliament.
Devolution is delegation of centrally held power to regional governments. In the 1980s New Labour advocated devolution in order to win votes in Scotland and Wales, however the actual process of transferring power did not gain momentum until the 1990s. Devolution featured in the New Labour's election manifesto and it was only when New Labour won the general election that changes begun to take place. Yet, the reasons behind devolution were not only political but also economic. In the 1980s England was going through a period of high unemployment and although the economic situation in England was critical it was even worse in Scotland and Wales. There was also a feeling of discontent caused by an unequal distribution of EU funds and unfair economic policies which favoured England. Dissatisfaction with British rule was even more visible in Ireland where it frequently led to violence. The 1916 rebellion in Dublin, known as the Easter Rising, was followed by the two year civil war. Eventually, the persistence of Sinn Fein forced the British Government to negotiate and Ireland was divided into two parts. Britain retained a much smaller northern part which is now known as the Republic of Northern Ireland.[12]
Both academics and politicians distinguish three different types of devolution: administrative, legal and financial.[13] As the name implies, administrative devolution involves delegation of power to manage parts of the administrative system. The central government retains control over related matters of greater importance, for instance even if a regional body is put in charge of healthcare and/or education, as it is the case in Scotland, privatisation decisions must be taken by Westminster. Financial devolution involves granting of power to rise taxes, change the taxation rate or make decisions concerning distribution of public funds. Similarly, legislative devolution refers to the transfer of rights to pass legislation. Devolution is often said to be asymmetrical this means that power is not distributed evenly, e.g. although the structure of the Scottish Parliament and the Northern Ireland Assembly are similar the later cannot legislate on policing and criminal matters.[14] These arrangements have far-reaching consequences for Westminster, firstly it can be argued that following the break-up of the colonial system Parliament exercises its powers over a smaller geographical area.[15] Devolution, along with the membership of the European Union, create an impression that the remaining Parliamentary influence outside England is largely superficial. Secondly, the fact that devolution is asymmetrical could lead to calls for additional rights in order to redress the balance, the White Paper considering an extension of legislative powers of the National Assembly of Wales is already being considered.[16]
According to Introduction to the Study of the Law of the Constitution, a classic work by Dicey, 'sovereignty' means
"that Parliament ... has ... the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."[17]
In view of the above discussed developments can it still be argued that Westminster has not suffered any loss of sovereignty? Theoretically, there is no conflict between sovereignty and the process of devolution, in the memorandum to the Procedure Committee, the Leader of the House, Margaret Beckett said:
"None of the devolution legislation affects the House’s ability to pass legislation on any matter. For all public bills, the Government would expect that a convention would be adopted that Westminster would not normally legislate with regard to devolved matters without the consent of the devolved body."[18]
Finally, Munro explains that being sovereign Parliament is free to impose limitations on its own power.[19]
Despite what has been said above there is also evidence to the contrary, devolution produced a paradoxical effect known as the 'West Lothian Question.' It means that although Scottish MPs can seat in the British Parliament and decide on issues related exclusively to England English MPs have no influence on similar Scottish issues which have been devolved. This situation has been severally criticised on many occasions and led to calls for an English Parliament.[20] Parliament tackled these problems by further devolution but this time power was devolved to the English regions, e.g. the Regional Agencies Act 1998 established development agencies[21] while in 2000 the newly established Greater London Authority saw its own elected Mayor and the London Assembly. In November 2005 the Government issued a Consultation Paper which proposes extending the responsibilities of the London Assembly and the London Major.[22] These developments have already limited, and will continue to limit, the powers traditionally held by the legislature and the executive.
Although, in theory, Parliament could choose to withdraw the devolved powers at any time a total withdrawal is unlikely to be possible in practice. Westminster would have to consider both political and social implications of such actions and it is likely that the response of the public would range from widespread discontent to outright violence. Riots would be likely to break out in Northern Ireland where, as mentioned at the beginning of this paper, violent resistance to English rule has taken place in the past. In 1972 Edward Heath re-established direct rule over Northern Ireland, he was criticised by both unionists and nationalists. The sense of national identity in Northern Ireland remains very strong while in Scotland objections to a withdrawal of devolved powers would probably be raised on nationalist, and particularly economic, grounds. Consequently, it is difficult to deny that devolution undermined sovereignty of Westminster Parliament; arguments to the contrary have limited, and purely theoretical, validity.
BIBLIOGRAPHY
TEXTBOOKS
Munro, Colin R, (1999), Studies in Constitutional Law, Butterworths, second edition.
ARTICLES & CONSULTATION PAPERS
A Consultation Paper, The Greater London Authority: The Government’s proposals for additional powers and responsibilities for the Mayor and Assembly, (2005).
Leeke Matthew, Chris Sear and Oonagh Gay, An Introduction to Devolution in the UK, Research Paper 03/84, (2003).
Wood, Edward, The Procedural Consequences of Devolution, Research Paper 99/85, (1999).
WHITE PAPERS & STATUTES
1998Regional Agencies Act
2005Government White Paper: Better Governance For Wales
INTERNET SOURCES
Campaign for an English Parliament, http://thecep.org.uk/devolution.shtml [Accessed on 4 August 2006].
4. Explain how the Human Rights Act 1998 has changed the approach to the protection of human rights in the law of England and Wales. Has the change been for the better or for the worse?
Enactment of the Human Rights Act was one of the many objectives which featured in the New Labour’s 1997 election manifesto, the proposal to implement the Act was also part of a much broader programme of constitutional reforms. The statute, which entered into force in 2000, implements the European Convention on Human Rights. According to Lord Lester of Herne Hill the Human Rights Act 1998:
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“declares basic rights and freedoms inherent in our common humanity, and the ethical values of a modern democratic society governed under the rule of law - a society in which individual and minority rights must be protected against the tyranny of majorities and the abuse of public powers, especially where excessive means are used to pursue legitimate ends. The Act provides an ethical framework to guide law- makers, judges, and individual men and women.”[23]
However, as will be shown below the changes brought on by the Act have not always been considered positive.
Prior to its entry into force the Act received a lot of negative media coverage, concerns were raised about widespread abuses of the immigration procedures as well as the welfare system. There were also fears that the Act would force judges to disregard Acts of Parliament and by doing so undermine the doctrine of Parliamentary supremacy. Yet, as the subsequent events have shown most of these concerns proved misplaced. The unease about statutory interpretation was mainly due to section 3 which provides that, whenever possible, legislation must be enforced consistently with the Convention. Section 4 adds that in cases where such interpretation is not possible the court may issue a declaration of incompatibility. The declaration does not overrule any provisions but merely states that the law does not comply with the European Convention of Human Rights.
The Act lead to an increased protection for the rights of individuals, e.g. in Michael Douglas and Catherine Zeta-Jones v Hello![24] the Court of Appeal recognised the right to privacy. Another notable example of human rights protection is the decision in Mendoza v Ghaidan,[25] in this case the protected Rent Act tenant passed away. The court was asked to consider whether, for the purposes of the law of succession, the surviving homosexual partner should have the same rights as he would have had if the couple was heterosexual. The case is significant for several reasons: firstly, the court held that discrimination was unlawful, secondly, it shows that the Human Rights Act applies both to public and private bodies and thirdly, the court interpreted the Rent Act 1977 broadly enough to give effect to the Convention rights. In the opinion of Lord Lester of Herne Hill Mendoza[26] was correctly decided, he even prised the decision for upholding constitutional rights which include equal treatment.[27]
Despite what has been said above the Act is also known to have its opponents. The decision in R (Q and others) v Secretary of State for the Home Department[28] proved particularly contentious and it has been a subject of a sever ministerial criticism. The court held that firstly, the Home Secretary must support asylum-seekers and secondly, the Home Office acted in breach of Article 6. Article 6, which grants a right to a free trial, was violated when the applicants were refused to have their circumstances assessed on individual basis, moreover they were not allowed to appeal. In response to this decision the Home Secretary, David Blunkett, said:
"If public policy can be always overridden by individual challenge through the courts, then democracy itself is under threat.”[29]
In Alconbury Limited v Secretary of State for the Environment, Transport and the Regions[30] Lord Hoffmann was equally disapproving of the way the case-law has been developing, he that although the Human Rights Act was meant to reinforce the rule of law it reinforced the 'rule of lawyers' instead.
September 11 gave rise to many contentious legal issues, human rights, terrorism, extradition and prohibition of torture are now hotly debated. Some of the problems stem from the fact that newly granted civil liberties are counter-balanced by measures introduced on the grounds of national security; hence the Terrorism Act, which came into force on 13 April 2006, prohibits ’glorification’ of terrorism. The ’glorification’ of terrorism is now a criminal offence and applies to speech as well as membership of political and non-political groups. There is a possibility that the provisions of the Act will conflict with the rights guaranteed by the Human Rights Act 1998, future challenges are likely to be based on Article 10 which guarantees freedom of speech and expression. It is yet to be seen what will be the effect of the Act and how it will be interpreted. Another issue which has become particularly contentious is extradition. The Human Rights Act 1998 does not contain any provisions prohibiting extradition however it does impose some conditions, the person who is being extradited should not be subjected to torture or inhuman treatment.
Finally, can it be said that following the implementation of the Human Rights Act the protection of human rights has improved or, on the contrary, worsened? It seems that there is no ’right’ answer to this question. As has been shown above, ministers can be very critical of the way the Act is interpreted while the judiciary appears very enthusiastic. Nonetheless, human rights are now an integral, and written, part of the British constitution. The Act introduced a new approach to statutory interpretation and added to the range of reasons on which government action can be found unlawful. In other words it increased the accountability of the executive and at the same time encouraged respect for the rule of law. Accordingly, it can be concluded that the Act facilitated many positive changes.
BIBLIOGRAPHY
TEXTBOOKS
Munro, Colin R, Studies in Constitutional Law, Butterworths, second edition, 1999.
ARTICLES
Glover, Richard, Retrospectivity and the Human Rights Act 1998, [2003] 4 JCLI.
CASES
Alconbury Limited v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.
Mendoza v Ghaidan [2003] 2 WLR 478.
Michael Douglas and Catherine Zeta-Jones v Hello! (2001) 2 All ER 289.
R (Q and others) v Secretary of State for the Home Department, 20 February 2003, Times Law Reports
STATUTES
1998 Human Rights Act
2006Terrorism Act
INTERNET SOURCES
Lester, Anthony, The Human Rights Act - five years on. 2003 (online). Available from: http://www.hrla.org.uk/docs/lord lester.pdf#search='human rights act 1998 & law' [Accessed on 6 August 2006].
Footnotes
[1] Munro, Colin R., Studies in Constitutional Law, Butterworths) 1999, p. 1.
[3] Griffith, John, The political constitution, (1979) 42 MLR 1.
[4] [1974] AC 765, [1974] 1 All ER 609.
[7] Munro, Colin R., Studies in Constitutional Law, Butterworths) 1999, p. 57, per G. Marshall and GC Moodie.
[8] Oonagh Gay, Thomas Powell, Individual ministerial responsibility - issues and examples, Research Paper 04/31, (2004).
[9] Oonagh Gay, Thomas Powell, Collective responsibility of Ministers - an outline of the issues, Research Paper 04/82, (2004).
[14]Matthew Leeke, Chris Sear and Oonagh Gay, Parliament and Constitution Centre, An Introduction to Devolution in the UK, Research Paper 03/84, (2003), p 7.
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