Text, Cases and Materials on Public Law and Human Rights

Helen Fenwick, Gavin Phillipson, Alexander Williams

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781135071332
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book interweaves an authoritative authorial commentary – significantly expanded from the last edition - with extracts from a diverse and contemporary collection of cases and materials from three leading academics in the field. It provides an all-encompassing student guide to constitutional, administrative and UK human rights law.

This fourth edition provides comprehensive coverage of all recent developments, including the Fixed Term Parliaments Act 2011, restrictions on judicial review (Criminal Justice and Courts Act 2015), changes to judicial appointments (Crime and Courts Act 2013), the 2014 Scottish Independence Referendum, Scotland Act 2016 and draft Wales Bill 2016. Recent devolution cases in the Supreme Court, including Imperial Tobacco (2012) and Asbestos Diseases (2015) are fully analysed, as is the 2015 introduction of English Votes for English Laws. The remarkable Evans (2015) 'Black Spider memos' case is considered in a number of chapters. The common law rights resurgence seen in Osborn (2013), BBC (2014) and Kennedy (2014) is analysed in several places, along with other key developments in judicial review such as Keyu (2015) and Pham (2015). Ongoing parliamentary reform in both Lords and Commons, including major advances in controlling prerogative powers, are fully explained, as is the adaptation of the core Executive to Coalition Government (2010-2015). There is comprehensive coverage of key Strasbourg and HRA cases (Horncastle (2010), Nicklinson (2014), Moohan (2014), Carlile (2014)), and those in core areas of freedom of expression, police powers and public order (Animal Defenders (2013), Beghal (2015), Roberts (2015), Miranda (2016)) and the prisoners' voting rights saga, up to Chester (2015).

Chapter 1

Constitutional Principles and the British Constitution

Chapter Contents

Introduction

Fundamental Ideas in Constitutional Theory

The Variety of Constitutions

The Existence and Nature of the UK Constitution

The Political Constitutionalist Perspective

Further Reading

Introduction

In this chapter, the nature of constitutions in general is considered and the UK constitution is placed in this context. The impact of the recent extensive programmes of constitutional reform upon traditional ways of examining the UK’s uncodified constitution will also be analysed. These reforms constitute by far the greatest change to the UK constitution in the 20th century and have been continued under the two governments since. Recent key reforms are briefly described in the following extract from an article whose title is of clear significance.

V Bogdanor, ‘Our New Constitution’ (2004) Law Quarterly Review 242 (extracts)

THE years since 1997 have seen an unprecedented and perhaps uncompleted series of constitutional reforms. They comprise:

1 The constitutional independence of the Bank of England from government in monetary policy.

2 Referendums, under the Referendums (Scotland and Wales) Act, 1997, providing for referendums on devolution to Scotland and Wales [and later for Northern Ireland].

3 The Scotland Act, 1998, providing for a directly elected Scottish Parliament.

4 The Government of Wales Act, 1998, providing for a directly elected National Assembly in Wales …¹

6 The establishment, under the Northern Ireland Act, 1998, of a directly elected Assembly in Northern Ireland.²

7 A referendum, under the Greater London Authority (Referendum) Act, 1998, on a directly elected mayor and strategic authority for London.

8 The introduction of proportional representation for the elections to the devolved bodies in Scotland, Wales, Northern Ireland, and the London strategic authority.

9 The European Parliamentary Elections Act, 1999, providing for the introduction of proportional representation for elections to the European Parliament.

10 The requirement on local authorities, under the Local Government Act, 2000, to abandon the committee system and adopt a cabinet system, a city manager system or a directly elected mayor.…

11 The Human Rights Act, 1998, requiring public bodies to comply with the provisions of the European Convention on Human Rights, allowing judges to declare a statute incompatible with Convention rights.…

12 The removal, under the House of Lords Act, 1999, of all but 92 of the hereditary peers from the House of Lords…

13 The Freedom of Information Act 2000.

14 The Political Parties, Elections and Referendums Act 2000, requiring the registration of political parties, and control of political donations and national campaign expenditure, and providing for the establishment of an Electoral Commission to oversee elections …

15 The abolition of the historic office of Lord Chancellor, the removal of the Law Lords from the House of Lords, and the establishment of a new Supreme Court [via the Constitutional Reform Act 2005].

Any one of these reforms would constitute, by itself a radical change. Taken together, they allow us to characterise the years since 1997 as a veritable era of constitutional reform.³

Notes

1. To the above list one may add the Political Parties and Elections Act 2009⁴ and the Parliamentary Standards Act 2009: passed in response to the MPs’ expenses scandal⁵ this statute broke new ground in terms of compromising the ancient principle of parliamentary selfregulation – considered fully in Chapter 9. The Constitutional Reform and Governance Act 2010, which made a number of reforms, is discussed below at p 16. Significant constitutional reforms passed since 2010 include: the Fixed Term Parliaments Act 2011 (Chapter 11 at 496–98); two statutes dealing with (minor) House of Lords reform (Chapter 9 at 390–91); The European Union Act 2011, providing for approval by referendums before any further powers are passed from the UK to the EU (considered in Chapter 5 at 190–92); the Succession to the Crown Act 2013, which both ended the priority of male heirs to the throne, and removed the ancient rule that had disqualified from succession any member of the Royal Family who had married a Catholic; the Recall of MPs Act 2015, considered briefly in Chapter 9 (441); the ‘yes’ vote in the Welsh Devolution Referendum, which triggered provisions of the Government of Wales Act 2006, giving the Welsh Assembly full law-making powers in all the areas devolved to it; the Scotland Act 2012, which gave some further modest powers to the Scottish Parliament and the Wales Act 2014 which gave further fiscal powers to the Welsh Assembly. More significant was the Scotland Act 2016 and the draft Wales Bill 2015–16 (for all the changes to devolution see Chapter 6).

2. Finally, non-statutory, but very important changes to the Standing Orders of the House of Commons brought in a form of English Votes for English Laws in 2015 (below at 258–61). By the time this book has been published, the referendum on the UK’s membership of the EU will have taken place, following the modest renegotiation of the UK’s relationship with the EU (see Chapter 5 at 182); finally we have the promised repeal of the Human Rights Act and its replacement by a British Bill of Rights on which we do not as yet have even a long-promised consultation paper.⁶

3. Some bigger constitutional reforms were mooted but did not in the end come off. The UK escaped drastic constitutional change in the form of the secession of Scotland to become an independent country, with the Scottish ‘no’ vote in the independence referendum in September 2014. It also rejected a change to the voting system for General Elections with the ‘no’ vote in the Referendum on Electoral Reform in 2011. Legislation that would have replaced the House of Lords with a largely elected second chamber was withdrawn by the Government in 2012 in the face of hostility from Conservative backbenchers (see Chapter 9).

4. Of course, constitutional change does not only come about by statute: throughout this book key judgments of the courts that introduced important constitutional changes will be considered, while changes to constitutional conventions provide an important means by which constitutional, but non-legal change comes about (see generally Chapter 2).

Fundamental Ideas in Constitutional Theory

We might begin by asking ‘what is the basic purpose of a constitution?’. One influential answer, at least in Western constitutional thought, has been that constitutions are necessary in order to control the power of the state; another strand in that train of thought emphasises the role constitutions play in ensuring that that power derives from a legitimate source. On the one hand, it tells us how power may be used; on the other, from where it should derive. To the first idea may be attributed the notions of the Rule of Law, and the separation of powers, whilst the second is clearly related to the notion of democratic legitimacy.

As for what makes a constitution ‘legitimate’ or ‘lawful’, different scholars give different answers depending upon their legal-philosophical stances. A positivist approach⁷ argues, that in the end a constitution becomes binding and legitimate, simply by working, that is, by acquiring the acquiescence of at least the bulk of the population, and of state officials, like judges and civil servants. As we shall see, similar arguments are made about the basis of parliamentary sovereignty, traditionally the UK’s ultimate rule.⁸ Clearly, such an account says nothing about what a constitution ought to do or its content. David Feldman however suggests that such a view treats states simply as ‘robber bands writ large’:

When St. Augustine asked, ‘What are states without justice but robber-bands enlarged?’ he was putting his finger on a key question for political theory. The difference between bands of robbers and states is that states are, or should be, organised through their constitutions in such a way as to limit the robber-band’s capacity to use its powers in arbitrary, anti-social and unaccountable ways. In short, constitutions subject states to moral values and principles, thereby converting brute force into legitimate authority. They do this partly by adhering to traditional modes of operation where those have acquired their own authority over time, and partly by explaining, interpreting, or changing those modes in the light of currently acceptable normative standards.⁹

Some of the complexity in discussing constitutions arises from the fact that the term is used in a number of different ways: Anthony King notes that the Oxford English Dictionary has a total of eight definitions.¹⁰ He starts with the simplest and least contentious, whereby a ‘constitution’ refers to:

The set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relationship between [those] governing institutions and the people of that country.

As he notes, under this definition, all countries have constitutions, save for collapsed or ‘failed states’.¹¹ Plainly also, under this definition, Britain has a constitution; moreover, it is ‘wildly misleading’, he argues, to say that it does not have a written constitution: ‘What Britain lacks is not a written constitution but a codified Constitution, a Constitution with a capital “C”, one that has been formally adopted.’¹²

King goes on to argue that the significance of the distinction between ‘written’ and ‘unwritten’ constitutions is generally exaggerated. He notes the ‘hundreds of pages of constitutional legislation’ existing in the UK and concludes that, ‘To describe the UK constitution, against that background, as unwritten, is simply bizarre’.¹³ He then goes on to distinguish constitutions, as simply the way the system of government operates, from the notion of constitutionalism, as a set of ideals—the kind of thing that David Feldman was referring to.

A King, The British Constitution (2007), pp 6–9, 10–13

Much of Britain’s constitution is, indeed, unwritten. The role of the prime minister is not provided for by statute [and], the Cabinet is not mentioned anywhere in statute law … Similarly, although the institutions and practices of local government are subject to innumerable statutes, no single statute defines the role of local government in Britain’s overall constitutional structure. However, the fact that much of Britain’s constitution is unwritten does not distinguish the UK from most other countries, including countries with codified, capital-C Constitutions. To take an obvious example, the US Constitution nowhere explicitly empowers US courts to strike down federal statutes and other acts of government on the grounds that they are unconstitutional (as distinct from merely illegal). Those who wrote the US Constitution did assume that the courts in the new system would play such a role, but they felt no need, perhaps for that very reason, to draft a formal constitutional provision along those lines. They thought a ‘common understanding’ rather than a formal rule would suffice. And they were right. Led by Chief Justice John Marshall, the US Supreme Court in Marbury v Madison in 1803 struck down a clause of the Judiciary Act 1789 on the grounds of its unconstitutionality. The court did not thereby amend the US Constitution, but it certainly amended the US small-c constitution (albeit along lines that had already been anticipated).

More generally, almost no country with a capital-C Constitution provides in its Constitution for one of the most significant features of any constitutional order: the country’s electoral system. [King points out that the US, French and German countries do not specify this]. Yet clearly any democratic country’s electoral system constitutes one of the most important rules regulating the relationship between that country’s governing institutions and its citizens. The type of electoral system that a country has profoundly influences the structure of its party system, the particular parties that people choose to vote for, the way in which shares of the people’s vote are translated into parliamentary seats, the ways in which governments are formed and the ways in which, having been formed, they proceed to govern.

Not only do capital-C Constitutions quite commonly omit to cover matters of high constitutional importance: they quite commonly contain provisions relating to matters that are of no constitutional importance whatsoever. The aforementioned German Constitution solemnly declares that ‘All German merchant vessels shall constitute a unitary merchant fleet.’ Even better, the Austrian Constitution [describes in detail the coat of arms of Austria] [while] … the Constitution of Iceland insists that ‘the President of the Republic shall reside in or near Reykjavik’. Capital-C Constitutions are not always the Solomon-like documents they are sometimes made out to be.

None of this is to say that codified Constitutions do not matter. Of course they do—or may. The fact that the US Constitution provides that ‘the President shall be Commander in Chief of the Army and Navy of the United States’ gives the US president enormous power in times of international conflict, as the wars in Korea, Vietnam and Iraq amply demonstrated. It is merely to say that the observer needs to keep his or her eye on the Big Picture—a country’s small-c constitution—and not be over-concerned with what happens to be written down and what happens not to be. In the specific case of Britain, although the country is far from acquiring a capital-C Constitution, more and more of its small-c constitution, as we shall see, has come to be written down in recent years.

II

It is worth exploring the implications of this distinction between constitutions and Constitutions a little further, if only in the interests of avoiding confusion.

Because the UK has no capital-C Constitution, it has no legal mechanism designed specifically for the purposes of bringing about changes in its constitution. All upper-case Constitutions contain provisions for their own amendment—usually provisions that call for quite complicated procedures outside the usual norm and requiring some kind of super-majority to be obtained—but a Constitution that does not exist cannot be amended in that sense. Indeed the British constitution is never ‘amended’; it is only changed. It can be changed either as...