Sources of the British Constitution - Essay Example

Constitutional Law Module Module Number Academic Year Seminar A. Discuss the main sources of the British constitution in order of importance and, for each one, describe one example stating what its main effects are. B. B) What purpose is served by rules on standing in judicial review proceedings? Student’s number Part A: Sources of the British constitution The Constitution of Britain is drawn from several sources including: the European Union law, Parliamentary Acts, common law, Royal Prerogatives, Conventions and scholarly material. The Constitution is unwritten because there is no body of law that brings together these rather disparate written sources of law into a single document. The bulk of the constitution is ingrained in written law, within statutory bodies, court rulings, case law and international treaties. The constitution is made up of other unwritten sources of law such as legislative constitutional conventions. These regulate the activities of parliamentary proceedings. Since the late 17th century, the basis of the UK constitution has conventionally been determined by parliament. But since the country joined the EU in 1972, the EU law has been influencing the legislative role of parliament, hence making it technically the top-most source of the British constitution. European Union law The fact that the EU law influences both the legislative work of the UK’s Parliament, which is charged with the sole responsibility of enacting local laws and common law discourses means the international law is the first source of the British Constitution at least in modern times. There are two primary forms of European law which better illustrates the point: the first source of UK constitution in EU law came in Flaminio Costa v ENEL [1964] ECR 585 (6/64), where the Strasbourg Court (European Court of Justice (ECJ)) entrenched the primacy of EU law over the domestic parliamentary Acts of the member countries including the United Kingdom1. The decision was handed before the United Kingdom officially became part of the Community (the EU). Since 1973, membership obligates Britain to pass laws which conform to the international law as envisaged in the Conventions and as interpreted by the Strasbourg Court. The decision technically reformed British laws which were in contravention of the EU law. The second body of EU law that is part of the UK’s constitution is the European Convention on Human Rights (ECHR). The Convention was drawn after the World War II in order to penetrate British national laws and strengthen the country’s determination to guarantee wide-ranging protections of the civil rights from infringement by government agencies. The consequential Human Rights Act 1998 (HRA) has effectively domesticated Convention provisions in the UK’s constitution since its enactment in 2000. The end result has been easier access to justice within the local courts on virtually any issue involving human rights based on the standards of the Strasbourg Courts. The HRA under s3 further obligates local courts to factor the provisions of the EU law in their decisions in the widest manner possible and where the superior EU law conflicts with the local law, to issue a writ of incompatibility rather than overruling it out-rightly. The provision underscores the superiority of the EU law to the common law and clearly obligates statutory drafters and parliament to observe the provisions of the EU law when legislating locally2. Parliamentary Acts Apart from the EU law, Parliamentary Acts passed by UK’s highest law-making body are another source of the British constitution. The obligation presumes the legislature as exercising the extended mandate of the people hence its supremacy over other policy-making organs of the government. For many centuries, UK’s parliament has passed many Acts which form an important part of the constitutional framework. These Acts encompasses the seminal Magna Carta Act of 1215 through recently passed laws such as Equality Act 2010. The seminal body of law was passed to safeguard citizens from government excesses and for the first time, guarantee the citizens of their right to impartial trial. Over the years the provisions have been adopted to regulate police interrogations, searches and seizures, and admissibility of evidence at trial. The second source of the constitution is the Acts of Union 1706 and 1707, which brought together the Scottish and English legislatures. Third, Parliament Acts 1911 and 1949 created the bicameral parliament and gave the House of Commons more law-making powers than the House of Lords to facilitate effective operations. Fourth, the European Communities Act 1972 welcomed the UK’s involvement in the European Union (then European Community). The Act not only legitimizes the EU law but requires local institutions to follow it in different areas of law such as when dealing with human rights. Lastly, the National Security and Terrorism Acts are also important sources of the British constitution in the sense that they define the operations of government agencies such as police services as they maintain law and order. These Acts are basically meant to tame executive responses to insecurity and ensure that they are executed in the best way possible in order to avoid infringement on the rights of innocent populations. These liberties stem from the Petition of Rights of 1628 which was a landmark statutory repeal that aimed to tame the excesses of the king, an office that was previously left unchecked for the fear of undermining the authority exercised by the holder of the office3. Common Law Common law of the United Kingdom is also an important part of the constitution, considering that it established rules based on the slow evolution of customs and beliefs. These doctrines cannot be exhaustively spelt out in any Acts of parliament or decrees. The common law doctrine obligates courts to progressively tailor the rather abstract nature of statutory laws into effective, well-oiled legal instruments which are responsive to the cultural evolution of the English society. UK’s courts acknowledge these principles and contribute towards upholding the constitution by interpreting the written bodies of law accurately and in ways that give them the best of workable meanings. By virtue of common law principles, common law has properly defined the Royal Prerogatives, the right of citizens to jury trial and the right of free expression, which are all part of UK’s unwritten constitution. Common law has been the nexus between various bodies of law, with corrective rulings being followed by parliamentary amendments or aggressive enactment of new laws to fill the gaps left in the constitution. The landmark ruling in Entick v Carrington [1765] EWHC KB J98, for instance, was a significant part of the constitution. In the ruling, the court established civil freedoms of individuals by restricting the parameters within which executive power could be wielded4. The case effectively limited the government authority to invade private property without reasonable grounds and thus informed the guaranteeing of civil liberties in not only the United Kingdom but the United States through the passage of the 4th Amendment. In the subsequent case of Campbell v Hall [1774] 1 Cowp 204, 98 ER 1045, the common law established a constitutional protection of individuals who inhabited British protectorates. Unlike the ruling in Entick v Carrington, which focused on expanding civil liberties, Campbell v Hall established, for the very first time, the spirit of democracy by limiting the use of excess executive power to control populations which had established an assembly of representatives. Royal Prerogative The Royal Prerogative has a tremendous impact on constitutionalism because it gives parliamentary bills the powers of Act by virtue of assents. The Prerogative is also important to the maintenance of the armed services including the relevant laws. Of late, however, some of the powers have been transferred to the Prime Minister who subsequently exercises them directly or through the cabinet. Certain authorities pre-dating the formation of the powerful parliamentary democracy laws are still bestowed upon the executive as led by the de facto Prime Minister. These include powers to: hire and fire cabinet ministers; recalling, inaugurating, proroguing, and disbanding Parliament; assenting to bills; declaring war and deployment of the military; engaging in foreign relations; signing of Conventions and issuing travel documents such as passports. These largely unwritten laws are constitutional provisions on the running of the executive arm of the government, complete with checks and balances to allow the execution of the powers without trampling on civil rights5. Parliamentary Conventions Parliamentary Conventions refer to the norms regulating the conduct of members of parliament in their law-making roles. The standing orders of parliament are a typical example of the conventions requiring order during legislation as a way of making good laws that are of great benefit to the people. Owing to the Convention’s operability within the confines of law-making, the judiciary lacks the jurisdiction to alter or enforce them because it is beyond their mandate as far as the constitutional doctrine of separation of powers disbars is concerned. Scholarly Writings Lastly, scholarly works also carry significant weight in the development of the UK’s Constitution. This is especially true for literary analyses touching on the supremacy of the law and how it can be modified to make it work better for the overall good of the society. As such, constitutional theorists are generally perceived to be just as influential as parliamentarians because influence the creation of better laws by stimulating constructive debate among members of the public. Two examples of authoritative works that have informed the UK’s constitution-making are “The English Constitution” by Walter Bagehot (1867) and “Parliamentary Practice” by Erskine May published in the mid-1840s6. In a nutshell, some sources of the Constitution such as the Prerogatives and scholarly input may seem unimportant. But in the real sense, all of these sources of the British Constitution collectively contribute to the spirit of constitutionalism and its application in virtually every aspect of life in the country. Part B: Rules on Standing and Judicial Review The rules on standing in judicial review proceedings are basically meant to limit the eligibility to challenge the constitutionality of administrative law or of an executive policy to those who are affected the most by the decision in question. This effectively eliminates unnecessary sideshows by individuals whose interests are not at risk of government action or those who are seeking popularity. The current rules on standing are provided under the Senior Courts Act 1981, s31(3), stating that no party shall petition the court for judicial review unless the High Court considers the petition was filed in line with its rules. The Court is also required to determine whether the subject matter is of sufficient interest to the applicant7. Sufficient interest condition The “sufficient interest” rule is a safeguard defined by Lord Scarman as meant to deny busybodies and other abusers of the process the chance to use the noble cause for no meaningful ends. According to the justice, the rule ensures courts do not waste their precious time trying to resolve unimportant or immaterial violations of procedures or laws. The description was evidenced in the case of R v IRC ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, where a petition seeking judicial review was dismissed by the court on the grounds that the tests were not met. The case was popularly known as the “Mickey Mouse”, a name derived from aliases used by Fleet Street printing staffs to avoid taxation. The Inland Revenue and the workers had hammered out a deal which saw the former waive tax obligations that were expected of them8. The waiver upset the Federation which was representing the taxpayers’ interest. The Court of appeal ordered the members to continue the case by prompting the IRC to secure all of the tax because they had a sincere grievance raising the stakes as to encompass public interest. But when the issue came before the House of Lords, which at the time served the role which is today the Supreme Court’s (the court of last resort), the justices found that the Federation did not have sufficient interest in the case to warrant its petition under s31(3) of the Senior Courts Act. As such, a single taxpayer does not have sufficient interest required in petitioning the courts to order a probe on the activities of a fellow taxpayer. Similarly, a group of individuals roughly assembled in an organization were also held to lack the capacity required to secure a standing. In light of the high threshold set by the court for judicial review, it is evident that courts were more determined to stay important decisions and only review them when it was extremely necessary. The move guarantees consistency in government operations by allowing the enactment of laws and policies without the fear that courts would strike them down. Substantive test In dismissing the petition for failure to meet the “sufficient interest,” the House of Lords however, established that in the event that the matter in question had been extraordinarily material and carried incurable illegalities then they would have been obliged to allow the standing. On this revised reasoning, a standing does not just mean a petitioner having close interest in the legal issue in question; rather it suffices in cases that meet the substantive test as well. As such, it behoves the High Court to determine the latter test at opening hearings. Despite the fact that s.31(3) of the Senior Courts Act 1981 appears to clear the air in disallowing undeserving parties from seeking judicial review, the delivery of contradicting rulings by the Court of Appeal and the House of Lords arguably in R v IRC belittles the intent of the provision and the courts’ interpretation of the same. In R v IRC, House of Lords had noted that the petitioner did not have sufficient interest but voiced the Court’s flexibility to expand judicial review rights in its ruling that the law would be prone to abuse if the courts did not allow standing for a movement like the Federation or a small determined group on the grounds of archaic procedural rules. The justices noted that when it comes upholding the rule of law, any organization irrespective of its constitution or reputation deserves a standing to stop any illegality9. The decision suggests the rule of law is generally meant to stop illegalities, regardless of whether the petitioner appears to be a busybody or one in a popularity contest. The subsequent case law reflected the precedent set by Lord Diplock in R v IRC. In R v Secretary of State for Foreign Affairs ex parte World Development Movement [1995] 1 All ER 611), for instance, the court permitted standing for the World Development Movement (WDM) to overturn an executive decision to finance a Malaysian dam project, whose budget was apparently too expensive. If Lord Diplock sat on the bench of this latter case, he would have ruled that the primacy of vindicating the legality sufficiently qualified the granting of the judicial review standing request by WDM, whether or not the petitioner had a direct concern in the matter because the relevant minister had ‘illegally’ sneaked the budget into a package for arms delivery to Malaysia. In addition, the substantive nature of the claims coupled with the absence a more credible party to seek judicial standing in the case and the good reputation of the WDM may have all been considered in allowing the petition10. Conclusion Generally, the rules on standing in judicial review proceedings are basically meant to ensure that parties who are affected the most by an adverse law or executive policy are given standing because they are the ones who would suffer the highest injury if the law sufficed. However, due to slight changes in the common law, sufficient interest has been extended to not just individuals or parties with direct interest in a policy decision or law but to issues with substantive impact on the public as well as those that are laced with illegalities. As such, the current rules examine the constitutionality of the government decision or law, the interests it would jeopardize and the magnitude of the adverse impacts as opposed to the credibility of the petitioners or whether the issue sufficiently touches on their interests. These rules ensure the courts review only laws that necessarily need review because they injure the petitioners. 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