The Principle Characteristics of the British Constitution - Research Paper Example

'The operation of the royal prerogative demonstrates why it would be preferable, for reasons related to democracy and the rule of law, to codify constitutional conventions in the UK'. Constitutional law is concerned with the system of rules whereby a state is governed.1 In most cases, these rules are to be found largely in a written document - the Constitution. The United States has probably one of the best known written constitutions in the world. However, this is not the case in the United Kingdom. Constitutions differ as regards their detailed features, though most are nowadays written. The principle characteristics of the British Constitution, which distinguish it from nearly all others, include features, such as it being unwritten and flexible. Of particular significance in this regard is the fact that, almost uniquely, many of the most important rules relating to the system of government in the U.K. are not actually laws at all.2 We refer to such rules as Constitutional Conventions. The British Constitution and the British Constitutional Law generally, apply throughout the United Kingdom, despite the fact that the United Kingdom consists of several countries with their own distinct characters and even language. In other words, the British Constitution is a unitary one, as distinct from a federal one like that of the U.S. However, since 1998, provision has existed for the "devolution" of powers to a Scottish Parliament and to Assemblies in Wales and Northern Ireland. These bodies exercise quite extensive governmental powers, particularly in the case of the Scottish Parliament which has the powers to enact primary legislation.3 It should also be noted that the UK is a "Constitutional Monarchy", unlike republics, such as the U.S. and Nigeria; however similar to that of Sweden and Japan for example. Yet, a constitutional monarchy in the context of an "unwritten" constitution is rather more unusual and gives rise to some very interesting features, which will be examined below.4 The British Constitutional Law differs from any other branch of English law which is in the role of non-legal rules, comparable to customs. These rules are known as Constitutional Conventions. Constitutional Conventions are not unique to the U.K., but are of particular importance. Conventions play an important part in all constitutions, but are perhaps particularly important in Britain since the constitutions remains un-codified.5 The maxim of the British Constitution is that the Sovereign can do no wrong, but that does not mean that no wrong can be done by Royal authority.6 The term was originally coined by A.V. Dicey and according to Dicey, conventions could be distinguished from laws, in that, whilst laws can be enforced in the courts, conventions are not.7 An example of an important convention is that of the Royal Prerogative. It is a convention which regulates the exercise of ancient powers, which started out in the hands of the King. The Queen now acts on the advice of the Prime Minister, however. Dicey claims that conventions are "to regulate the conduct of the Crown" (Queen and Government together), which demonstrates a sense of accountability.8 O. Hood Phillips, however, suggests that "conventions serve to provide a meaning by which the constitution can be changed without the need for formal changes in the law itself."9 This demonstrates flexibility. Sir Ivor Jennings made clear that, "conventions provide the flesh which clothes the dry bones of the law" -meaning, it makes the legal constitution work and they keep it in touch with the growth of ideas, also known as filling in gaps in the law.10 Conventions are not merely customs, and as Sir Kenneth Wheare claims, "conventions are more than just customs; firstly the rule must be considered to be binding (like a law); secondly it must serve some constitutional purpose; thirdly, it must be possible to point to precedence."11 Conversely, the question still exists - why do we not turn Conventions into rules of law, or codify them Some have been codify, such as Parliament Act 1911 and, the Statute of Westminster 1931, which states that the British government will not interfere with the affairs of other nations. However, a good answer is that there would be a huge shift in power in favour of the courts to the judiciary.12 During the Re Amendment of the Constitution of Canada 1982 another question arose - if the courts recognize conventions, does that mean they turn into laws The courts made it very clear that they do not.13 Some cases have touched on the question whether conventions can crystallize into law. This question was answered in the case of Manuel v Attorney-General [1983] and the suggestion in this case was that the convention that Westminster would not enact legislation for a dominion except at its request and with its consent had crystallized into law so that actual consent had to be established. The action had been brought by Aboriginal chiefs seeking declaration that the Canada Act 1982 was ultra vires, as the consent of the Aboriginal people did not exist.14 Section 4 of the Statute of Westminster 1931 did not enact the convention but incorporated it in a modified form.15 Under the constitution of the U.K., all actions of government are undertaken in the name of the Crown.16 Any account of the prerogative is an account of power. The prerogative today represents one of the most intriguing aspects of the unwritten constitution.17 In focusing on one particular convention, the Royal Prerogative, it may become clearer why Constitutional Conventions of the U.K. should be codified. The historical origins lie in the 'divine right', which was such that the King won land in conquest and believed that this was God's will. It was for the King to summon parliament and to prorogue it.18 The King could suspend parliament's sittings and dissolve it.19 Members of the King's Council were appointed and dismissed by the King at pleasure and the King was under no duty to consider Council's advice on matters.20 Similarly, it was within the King's prerogative to establish new courts of justice. The Court of Star Chamber, exercising extensive criminal jurisdiction with little of the formality of judicial proceedings and without the use of juries was established under the Statute of 1487.21 Also, with regards to taxation, it was held that the King was lord of all land and as such exercised his right to collect revenues from the land.22 In 1215, the Great Charter put limits on the King's powers. The common law courts, however, suggested that the King was the law. Henry De Braton said that "the King's absolute authority to rule in all areas of government came to a slow down".23 Some criticised the King's rule of law, as Cook stated: "the King cannot by proclamation amend the law and cannot create new criminal offences. And, if conduct was not punishable, the King could not make it so. The king hath no prerogative, save that which the law permits him".24 The 1689 Bill of Rights removed the legislative authority from the King to Parliament's disposal. It removed the power to impose tax and maintaining of an army. Judicial and legislative powers were removed altogether. However, the executive function was left legally in the hands of the King, or newly termed the Crown. Prerogative powers are largely exercised by government ministers. Bagehot suggests that "the function of the Crown is the right to be consulted, to encourage and to warn".25 These functions take the form now of a weekly meeting of the Queen and the Prime Minister. In 1718, Blackstone wrote, "by the word prerogative we understand that special pre-eminence that the King has over and above all other persons and out of the ordinary course of common law is in right of his royal dignity".26 Dicey claimed that "the prerogative appears to be historically the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown". Dicey similarly claimed that it is not possible for new prerogative powers to be created, developed or expanded. Lord Diplock in the case BBC v Johns [1965] states: "It is 350 years and a civil war too late for the courts to extend the Royal Prerogative by Judicial decision." In this case, the BBC claimed that it should not have to pay income tax on any profits made because as BBC was created by the grant of Royal Power that they too should not have to pay income tax similar to the Crown not.27 Similarly, some prerogatives can be listed to include, the defence of the realm, which includes going to war and ending war; keeping the peace; national security; judicial prerogatives (including the Home Secretary's power); grant of Honours and titles (example Knights and Barons); appointment of the Government Ministers; and, frequency of elections.28 Blackstone claims that the prerogative are not the result of judicial decisions and until the 20th century the courts would not interfere with prerogatives provided the government was performing a prerogative power and in its scope. However, this began to change in the early 20th century. In the case of AG v de Keyser's Royal Hotel Ltd [1920], the government army used the hotel for use as a headquarters for WWI.29 The power to seize private property was a well established part of the prerogative. The Defence Act 1842 laid down provision for compensation for those persons property that was taken over. The 1940 Defence of the Realm Consolidation Act stated that the 1842 Act would apply. The hotel argued that the statute clearly expressed compensation to be had. The government argued their ancient prerogative power and quoted the Salt Peter case [1603].30 The House of Lords said that there was in fact an ancient established power, but the act of Parliament now stated that compensation would be made. To the extent of this act, there is a sense of giving the Parliament sovereignty rights. The Crown could therefore not opt out of statutes where they were clearly made by Parliament to apply. It should be noted though that if a statute is repealed, then the prerogative will revive again in order to not have a gap in the law. Furthermore, in the case of Laker Airways v Department of Trade [1977], the claimant was an entrepreneur who wanted to come up with cheap air service. He called it Skytrain. He applied for the necessary permits granted by both British and U.S. governments. The agreement was an international treaty - The Bermuda Treaty 1946. Under this agreement both U.S. and British governments had to sign. The Civil Aviation Act 1971 actually licensed operators therefore their input was also necessary. Under s.3 of the act, the Secretary of State was empowered to issue guidance to them how they should use their own powers. However, there was a change in government and the new Secretary of State did not want this venture to go through. Input was placed to not issue the license to Skytrain due to a recent fuel problem, but it was also evidenced to be a political consideration also. Laker claimed the Secretary of State was acting unlawfully. The Secretary of State claimed as far as statutory power was concerned they were acting legally. But, because the ultimate purpose of the 'guidance' was to not give Laker a license, they claimed that the court could not do anything anyhow since the Treaty was outside its jurisdiction. The Court of Appeal held that it was true that Treaty powers could not be examined in courts but in part, the Statute in force covered the same area. The court had to examine the purposes of the Statute. It was held that they were satisfied that the guidance by the Secretary of State was unlawful.31 The court must look only at the Statutes. The guidance was over his powers. He could not use prerogative powers to justify not obeying a statute. The basic principle here is that where statutes cover the same area of prerogative, the statute will prevail. In the case of Council of Civil Service Unions v Minister of State for Civil Service [1985], the prerogative returned to the courts. The Prime Minister, 'as the Minister for the Civil Service, by a prerogative order terminated the right of workers at the Government Communications Headquarters to belong to trade unions. The order followed industrial unrest which threatened to disrupt the interception of signals intelligence. The Union challenged the order and claimed they had a legitimate expectation to be consulted prior to their rights being withdrawn. The Court of Appeal and the House of Lords accepted that the terms and conditions of employment of civil servants were within prerogative powers of the Crown. The significance of this case is twofold. The House of Lords claimed that the exercise of the prerogatives of the Crown were in principle as reviewable as those powers of statute'.32 However, the court also made claims on what matters would not be subject to review, such as the appointment of ministers, dissolution of parliament, grant of honours, and treaties. So, what is shown here is that many attributes of the prerogative still remain immunized from judicial review. Conversely, the case of R v Secretary of State for the Home Department ex parte Northumbria Police Authority [1988] demonstrates less of a forceful judicial attitude towards controlling the prerogative. This case held that in order for the Crown to rely on a Royal Prerogative, it must be shown that the prerogative claimed existed before 1688.33 Thus, there has been a development in the courts thinking whereby since there is no codified Constitution, it is the responsibility of the courts to regulate constitutional matters, specifically regarding the Royal Prerogative in that it can only be relied on with specific conditions and no new conditions after 1688 are recognized.34 Moreover, in R v Secretary of State for the Home Department ex parte Fire Brigades' Union [1995], the Secretary of State failed to implement the statutory scheme provided in the Criminal Justice Act 1988 and under the royal prerogative was able to issue a different scheme which introduced a tariff for compensation for injuries at a substantially lower rate than provided for under the statute. The House of Lords held by majority that the decision not to implement the statutory scheme and introduce an alternative under the prerogative was unlawful.35 The majority decision demonstrates the rule of law and the preference for statute over the prerogative. Generally, whether a constitution is written or unwritten there will be a number of powers reserved to the executive and these powers can be exercised without passage of legislation. Hilaire Barnett states that "such powers include entering into treaties, declarations of war and peace, and recognition of foreign states and diplomats. These are referred to as 'inherent executive powers'."36 Clearly, the perspective of the prerogative powers has been subjected to various judicial disagreements; however Barnett suggests that "parliamentary control over the exercise of prerogative power is less than adequate".37 There is little to suppose that replacing such powers by statute, or to codify them, would lead to fewer abuses of power. Joseph Chitty, whose work remains the most comprehensive account of the prerogative, explains the need for prerogative power in the following manner: "The rights of sovereignty or supreme power, are of a legislative and executive nature and must, under any form of government, be vested exclusively in a body or bodies, distinct from the people at large".38 The Human Rights Act 1998 gives individuals codified rights with regards to discrimination, religion, ethnicity, sexual orientation, vocation, etc. Therefore, this has become part of the constitution in the United Kingdom because s. 3(1) states: "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention Rights".39 However, for reasons related to democracy and the rule of law, the operation of the royal prerogative may demonstrate why it would be preferable to codify Constitutional Conventions. Sir John Donaldson from Francome v Mirror Group Newspaper [1984] illustrates that: "Parliamentary democracy as we know it is based on the rule of law, that requires all citizens to obey the law unless and until it can be changed by due process. There are no privileged classes to whom it does not apply. If the defendant can assert a right to act, on the basis that the public interest justifies breaches of the law, then so can any other citizen. The result would be anarchy."40 Thus, if the Royal Prerogative allows for a hierarchy in the law through its operation then it would seem logical to suppose that Britain's Constitution should be codified; however as stated above there have been attempts to do so in various ways and these have had their individual successes also. Read More