Constitutional Law in the United Kingdom - Case Study Example

 Constitutional Law The United Kingdom does not have a formal written Constitution; rather it is comprised of a body of legal and non legal rules which establish the institutions and governs the relations between those institutions as well as the relationship of the individual to the State. Legal rules are those generally derived from statutes, such as for example, the Magna Carta of 1215 or the Human Rights Act of 1998. Conventions however, comprise those non legal rules which form a part of the body of the Constitution. They are the non legal rules of constitutional behavior which bind the constitutional actors, and are not derived from Acts of Parliament or by judicial precedent, but are rather derived from underlying codes of conduct which are unspoken and based upon conventional practice.1 According to Jennings, constitutional conventions “provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.”2 He offers the view that these unwritten maxims of the Constitution apply to all aspects of the constitution, however the role of conventions cannot be considered in a vacuum but rather as part and parcel of the practices of the Constitution. Marshall and Moodie have offered a definition of Conventions as “rules of constitutional behavior which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the Law courts…nor by the presiding officers in the Houses of Parliament.”3 Some examples of Conventions have been provided by Barnett,4 such as (a) despite the fact that there is no legal rule laid out as such, the Queen generally enacts the Acts of Parliament. She also has the right to give her royal assent to bills that are passed by the Houses of Commons and Lords, although by convention, the assent must be provided compulsorily unless she is advised against it by the Government. Convention also holds that it is the Queen who appoints the Prime Minister – the leader of the political party that is able to secure a majority of seats in the House of Commons. The Queen has the right to dissolve Parliament on the advice of the Ministers and these Ministers of the Crown are individually and collectively responsible to Parliament. Another convention that exists is that the Prime Minister must mandatorily be a member of the House of Commons while ministers must be either members of the House of Commons or the House of Lords. Similarly, the Government in power must retain the confidence of Parliament at all times; if a vote of no confidence is passed on an important matter of Government policy, the Government must resign. Yet another convention holds that Parliament must meet at least once a year and may not criticize members of the judiciary, just as judges are not to play an active part in politics and the opinion of law officers of the Crown is confidential. The Lord Chancellor typically occupies the Woolsack as the Speaker of the House of Lords, however when he speaks for the Government in the House of Lords, he is obliged to physically move away from the woolsack. Other conventions include the fact that money bills must necessarily originate in the House of Commons and the House of Lords may not reject a bill that has been passed by the House of Commons. In describing the role of Conventions in UK constitutional law, Barnett has stated: “More than any other area of legal study……constitutional law in the United Kingdom involves far more than a learning of legal rules. Indeed it may be said, without exaggeration, that the non legal rules and practices (such as conventions) are at least as important – if not more important on many occasions – as the legal rules.”5 For instance, a convention is equivalent to a legal rule, in that constitutional actors are obliged to act in accordance with the unspoken codes of conduct characterized by conventions and a failure to do so can attract criticism as unconstitutional conduct. Conventions “not only are followed but have to be followed.”6 Conventions are equivalent to an established or correct way of doing things which is based upon some precedent form of conduct; however conventions impose an obligation to act in accordance with the established practice and will attract criticism if not adhered to. For example, in 1909, the House of Lords violated the existing convention by rejecting a budget passed by the House of Commons on the grounds that the Commons by convention, could not introduce a bill attacking the Lords, who were their peers, and their wealth, which was adequate justification for the House of Lords to reject the budget. The House of Commons however disputed the existence of any convention that limited their rights to include the wealth of the Lords in their bills. As a result of the violation by the House of Lords of the powerful convention that exists mandating approval of bills originating in the House of Commons by the House of Lords, the Parliament Act of 1911 that was passed subsequently severely restricted the power of the House of Lords over budgets and money bills. This is one example of an existing Convention that was challenged by the House of Lords but was found to be valid and was therefore able to stand the test of time. In a similar manner, the validity of the Hunting Act of 2004 was challenged in the case of Jackson and Others v Her Majesty’s Attorney General7. The Appellants contended that the Act was invalid because it was relied on the Parliament Act of 1949, which in turn was questionable because the Parliament Act of 1911 as amended by the 1949 act did not authorize its own amendment, since the consent of both Houses of Parliament had not been obtained. This was an instance where violation of the existing convention that mandates approval by both Houses was contravened, however the Courts held that the validity of the 1949 act had been upheld by convention in that it had been followed by several successive Governments. Therefore Conventions can be very useful because they are able to provide standards and constants that can apply over several years and cannot be arbitrarily challenged. In view of the above, it may be noted that constitutional conventions are those practices that are adhered to as a result of existing precedent and are in the nature of rules, however they may be subject to modification in some instances; therefore they are amenable to changes over time. Constitutional conventions are extremely important because they symbolize the underlying rules that are not written down in any document having legal authority yet they are accepted by all constituent parts. Since Conventions arise out of tried and tested principles, they have the force of authority and may be very useful in their application. It can also be argued that in the case of a written Constitution, the rules that are written down can be changed by power hungry people who enjoy authority and may utilize that existing authority to bring about changes in constitutional provisions. However, Conventions are derived more from basic principles of fairness, justice and balance of powers that have been tacitly agreed to by all parties and they may therefore more efficiently serve the cause of justice and democracy. In some aspects however, Conventions may need modification if they are to be truly effective. The Human Rights Act of 1998 which has been passed in the UK to adhere to the principles laid out under the European Convention of Human Rights are important in the context of the UK’s entry into the European Union. Parliamentary Sovereignty according to Dicey8, encompasses the existing Convention that the UK parliament has sovereign supreme power and this power cannot be undermined by the judiciary, through the Courts challenging laws passed by parliament. On the one hand, Parliamentary sovereignty and the balance of powers between the three branches of Government within the UK has produced the finest legal system in the world, with UK courts providing high levels of justice in the execution of the law. However, the notion of Parliamentary Sovereignty that has been existent within the UK for a long time and has ensured that the supremacy of parliament has been maintained, has now been undermined by the implementation of the Human Rights Act, which under Section 4, allows judicial authorities the power to declare a specific piece of UK legislation “incompatible” with the goals of individual freedom and liberty exemplified in the European Convention of Human Rights. The European Communities Act of 1972 which is now also valid and applicable within the UK means that EU law now takes precedence over national law. In this context therefore, the validity of the existing convention mandating Parliamentary Sovereignty becomes an issue and no longer appears to fully serve the needs of the present time. As a result, the existing Convention on the lack of authority of judicial authorities to question the law is now being modified through the Constitutional reform Act of 2005, which will set up a Supreme Court for the United Kingdom.9 Therefore, it appears that the existing Convention of Parliamentary Sovereignty may be under threat, however a closer examination will reveal that despite the power that has been provided to judicial authorities to pass a declaration of incompatibility under Section 4 of the Human Rights Act, this does not necessarily undermine the Parliament. It is still up to parliament to decide whether or not such legislation that has been declared to be incompatible is indeed so and whether it must be modified or repeal. In the event that such legislation is to be modified or repeal, it can be executed only by the existing Parliamentary procedure which is by gaining approval from both houses of Parliament. Therefore Parliament is still the sovereign power in the land and the existing convention on parliamentary sovereignty does continue to exist. It may be thus argued that the preservation of Parliamentary sovereignty yet again demonstrates the strength of existing conventions and the fact that they are equivalent to rules that must necessarily be followed. Moreover, most Conventions have demonstrated their validity and reliability over several years, since they are based upon nor,s of conduct that have been found to be fair and equitable over long periods of time by several generations of people. For example, the Convention that judicial authorities may not criticize members of parliament and the same criterion applying to Judges in that they may not question the Acts of Parliament enhances courtesy, justice and fair play in the dealings of the three branches of Government. It ensures that petty squabbles and power play do not become the basis for individuals who are in a position of power to assume dominant or authoritative positions. The existence of conventions balances the powers, rights and obligations of the various branches of Government and ensures that there is a system of checks and balances in place, ensuring equity and fair play in dealing and preventing abuse of power. Therefore on this basis, it may be concluded that Conventions are desirable aspects and their validity and force are useful, necessary and also inevitable because they cannot be easily overturned or repealed. Bibliography * Barnett, Hilary, 2002. “Constitutional and Administrative Law” (3rd edition) Cavendish Publishing * “Characteristics of the British Constitution.” [online] retrieved August 24, 2007 from: http://en.jurispedia.org/index.php/Constitution_(uk) * Dicey, A.V., 1885. “The Law of the Constitution” * Jennings, Ivor, 1959. “The Law and the Constitution” University of London Press * Marshall, G and Moodie, G.C., 1971. “Some problems of the Constitution” Hutchinson * R (on the application of Jackson) v Attorney General (2005) UKHL 56 Read More