Law213 – L02

Part D Constitutionalism

Two categories

Political Constitutionalism

Defining allowing the different branches of gov. – to define the nature and way it should develop

- Amendments ma reside with the political org

Legal CON

- Courts have the ability tp define the CON and strike down legislation
- In UK – no legal CON – since Pa is sovereign – last word on what it is and how it develops

Able to declare certain things incompatible – can reflect and consider changes – courts get to define what
counts as Human Rights and not – aspect of legal CON – before had been largely defined by POL C

It is illegitimate to trust decisions to judges – for they have not been elected

Griffith – if decisions are given to judges – just moving political decision (still political questions) just
changing venue in which it is debated

Legal CON

- Counters Griffith’s perspective

Through law can try and protect – Can take previous political question – where right might have be
vulnerable and protect it through fair decision making

- Less likely to damage minority interest – for politically motivated would be concerned with political
best interest – ex. not protect asylum seekers

Courts are well placed to protect and uphold values of CON

Legitimacy

- Means in which power wielders are held to be accountable by needs to be perceived as legitimate

Forms of Constitution

Distinguishing characteristics

Codified and Uncodified

UK – uncodified – too binary and simplistic - US has a single doc, but turns to case law and federal court
system for interpretation – not completely accurate to say that all info, is contained in one

- UK CON is fluid – because no doc outlines process of what is CON, how to amend – thus can change
day to day is not fixed doc – all doc are changeable
Unitary and Federal

US – Federal – state have own Con and Federal with governs between the state

UK – Unitary – all power theoretically emanates from Parliament

- Not as clear as that it is truly unitary – devolved governments – Scotland – example highlighted
Brexit, did not desire to leave – power may be from Westminster but legitimacy from electorate

Monarchical and Republican

UK – Constitutional Monarch –

Question – President would be more likely to want to make use of power

Presidential or Parliamentarian

Par – Gov is drawn from Parliament , and Par has initiative to initiate legislative process

Presidential – separated

Cabinet are not elected but appointed by the President

UK - elect a gov elected from Parliament – hence something has automatic majority of seat – so gov can
push through agenda with limited scrutiny

Essence of Constitutions

1. Allocation of power
2. Control of power
3. Creation of rights
4. Furtherance of well-being
5. Conferral of legitimacy
Constitutions and the British Constitutions II
UK

Con is reactive – problem occurs – leads to consideration of how to solve the issue – thus how it develops

R (Miller) v SSEEU

Gov. has to been given power by court

Relies on convential behaviour – on deciding appropriate response

A Brief History of British Constitution

Extreme continuity – no clean break and new start

Mini civil war – eventual return of monarchs

Limitations

- Too much material

Lord Carswell Jackson v AG - evolution – living organism and develops with changing times

Anglo-Saxons – Pre-Saxons

King Alfred the Great – beginnings of legal code – criticism – may just be image building to seem prestige

- Took example from Eastern Roman Empire,

- Power remains personal to the Monarch – not until Civil war that separation occurs

The Normans

- Consequences – lead to changes in governmental structure

- Normandy - Northern France
- Beginnings – of royal organisation that can function in absence of authority (Monarch)

King Henry II – credited for consolidating power

Centralised legal system

1. Consolidating power
2. Crusading meant normal disputes resolution not possible
3. Banditry – former mercenaries from The Anarchy
4. Limit power from the church

Henry managed to get one of his son anioted by Bishop of York – supposed to be by Canterbury --- Crown
able to consolidate more power over Ctaholic church in ENgland

Crusades – aristocracy – no longer in place – need for new way of resolving problems

Anarchy – Steven and Mathilda??

Steven would countinue reign – could not get son as confirmed as legitimate heir – reached agreement that
Henry II would be the heir – former mercenaries
Assuzes of Clarendon

King’s Bench of judges in London

- Travelling circuit judges – hears cases

- Juries for land disputes (previously handled by lords who were absent)

Slow containment of power – to key instutions holding power

King John I and Magna Carter

Designed to undone what Henry II had done

Henry III

Limitations of Kings power over time

14th and 15th Century

War of the Roses – actual disruption was localised

Monarchs begin to use Parliament to legitimises their successors – secured dynastic position

Parliament gets a sense of being able t o extract compromises from the King in exchange for agreeing to
heir

Towards end of 15th

Tudors and Government

Dissolution of monasteries – reduction of Church power

CON consequence – meant that Kingdom of England became org, was only one CON authority the King, not
an external authority – the Catholic Church

Assertion of Royal power as exclusive authority

17th Century – Civil War

Abolition of monarchy – death of Cromwell – return of the monarchy

Desire to retain Parliament authority and a compliant monarch

Mary – daughter of James II and William Orange

Process legalised through acts

18th to 19th

Relatively stable governments – more organised – appearance of political parties/unified political interest –
lead to cabinet government

The Great Reform Act

Emergence of Constitutional something – Gov. requires support of House of Commons

Change of power from being personal to

Constitutional Conventions

Political rules not enforced by law – existing but not possible to enforce

Two def, at least

Marshall and Moodie - Rules of con behaviour which are considered binding but not enforceable by law

Dicey Understandings, - habits or practices May regulate, but no tin reality in law

Purpose of Conventions

1. Curb the use of power – how official should behave – however Parliament cannot compel the
action
- What is important is the - Political consequence – politically enforable
2. Curb ministerial power –

Does not always operate –

Prime Minister Office – con creation – in 19th century as a consequences of party gov.

- Creature of political convention

- Hung parliament 0 no overall majority – largely dictated by parliamentary convention – just what is
expected based on previous experience

How do conventions develop?

Gov will do anything that will affect the power devolved without receiving consent

Miller – did the consent of devolved nation given? – courts said no political rule – whether gov decided to
secure consent is not legally enforceable – political consideration

Change of Circumstance

Disregarding

2010 – most seats not enough to form on own – formed a coalition government – suspend collective
responsibility – agrees decision in private and take the same stance publicly

Development - Codification – just writing down words which express nature of CON

Ponsonby rule - ting down words which express nature of CON

Ponsonby rule – If government signs a foreign treaty – ratification before Parliament – subsequently been
condified in Constitutional Reform and Governance Act 2010 – expresses procedure which is expected to
be followed – does not seem obviously enforced – but Miller interpretation now ay be possible

Sewel Convention

Attempt to rely on this in Miller case

Expressed in statute the understanding between devolved gov. but has not turned into laws

Existence of laws and conventions – why UK law is a mixture of legal and political constitutionalism
Attempt to litigate conventions

AG v Jonathan CApa

Publishing house – to publish diaries of cabinet minister – would it breach ministerial responsibility

Attempt to get an injunction to stop – courts ruled just a convention, it is a political decision cannot be
enforced

Evans v AG

Education Convention – Role of Prince of Wales

Unwillingness to disclose letters from Prince Charles which express political opinions

Cardinal Convention – duty of monarch to give, take advice and warn gov. – has an expectation to receive
info. Of how thei gov is being conducted

Jennings Test

1. Any precedents in the past

2. Do people involved believe they ought to behave in that way
3. Is the good reason to behave this way?

Application to Sewel

In the past happened

Reason to establish cooperative

If political cost is greater than carrying it out