Public Law

Chris Monaghan

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000486292
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Public Law guides students through all the essential components of the Public Law module, in a user-friendly structure that is ideal for visual learners.

Written by an experienced teacher of Public Law, the book takes an accessible and engaging approach to often complex areas of law, politics and the constitution. Incorporating recent developments, academic debate and commentary, the book introduces students to all the key concepts of this core subject. The text is grounded in context, explaining how Public Law operates in practice, and it thoroughly covers the spectrum of Constitutional Law, Human Rights and Administrative Law.

Integrated pedagogic features ease navigation of the text and reinforce key points. These include Public Law in Context, Recent Developments, Public Law in Practice, Practical Application and Academic Debate, and Public Law is also supported by online Multiple Choice Questions.

Public Law is essential reading for modules on public law and constitutional and administrative law on LLB degrees and conversion courses.

Part 1

The United Kingdom’s constitution

1 The United Kingdom’s constitution

DOI: 10.4324/9780429293498-2

This chapter will

• define what is meant by a constitution;
• consider the nature of the United Kingdom’s constitution;
• explore the history and the key constitutional developments of the United Kingdom; and
• consider the academic debate over whether the United Kingdom has a constitution.

Before you begin

It is important to understand that this chapter is intended to introduce you to a number of key themes and topics that will be explored in far more detail throughout this book. My advice to students when using any textbook is to read each chapter twice. The first time is the opportunity to navigate the text and get an overview of the subject-matter. The second time is usually where you should highlight key parts, take notes and possibly annotate the text.

In this chapter we will discuss concepts such as the Rule of Law, Parliamentary Sovereignty and the Separation of Powers, which together constitute four chapters in their own right. Therefore, my advice is to treat this chapter as an introduction and do not be put off by the scope of this chapter, as by its very nature it will need to explain the United Kingdom’s Constitution.

1.1 Introduction

Many people use the word constitution without really knowing what it means. Indeed, if someone or an institution acts in a manner regarded by a particular newspaper or political opponent as against their own understanding of the constitution, then they are said to be acting unconstitutionally, or in an unconstitutional manner. This is not designed as a criticism because as you shall see the United Kingdom does not actually have a codified constitution. Therefore, it is not possible to visit London for the day and visit the British Library to see the original written constitution or find it online via the parliament.uk website. This means that when the United Kingdom is faced with the political, economic and constitutional uncertainty that is the United Kingdom’s departure from the European Union (or Brexit), then this causes questions to be raised about the constitution and the conduct of the actors working within it:

• What does Parliamentary Sovereignty mean within the United Kingdom’s constitution and what will happen to the powers and ‘sovereignty’ repatriated from the European Union?
• Should Members of Parliament (MPs) vote to give effect to the people’s decision (via the 2016 referendum) to leave the European Union, or do MPs in a representative democracy have the right to put the national interest over a non-binding advisory referendum?
• Should referendums be used to decide important constitutional questions given the seriousness of the decision and the resulting difficulty in the government reaching a position that could gain the support of the House of Commons?
• Are the judges really the ‘Enemies of the People’¹ for holding that the government does not have the prerogative power to trigger Article 50 without parliamentary approval? The last question is important as the decision in R (on the application of Miller) v Secretary of State for Exiting the European Union (Miller No. 1)² is upholding the constitution and therefore this raises interesting issues regarding a clash between the constitution and popular opinion.
• Does the fact that a majority of the people of Scotland voted to remain within the European Union give support for greater devolution of legislative powers to the Scottish Parliament and possibly independence, which would then permit Scotland to reapply to join the European Union?
• What will be the long-term constitutional and political implications for Northern Ireland as part of the United Kingdom, given that it shares a land border with the European Union?

In this chapter, we will look at what the word constitution means and why every country, organisation or sports club will require a constitution to enable it to work effectively. The words effectively, or effective, are important as in a democratic society there would be no point in having a constitution if it served no purpose at all. The most famous constitution is that of the United States of America, which was drafted in 1787. The preamble to that constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.³

We can see that the effective purpose behind the making of the constitution are spelt out quite clearly in the preamble. Not that the eventual constitution which came out of the constitutional convention held in Philadelphia in 1787 was uncontroversial, which is unsurprising given the fact that there were 13 separate states who would be voluntarily agreeing to cede a portion of their sovereignty when entering into a Union with each other.⁴ It is useful to begin with the United States Constitution because it quite clearly sets out the relationship between the federal government which will be responsible for managing the new country and the individual states. The constitution gives certain powers to the three branches of the federal government: the executive⁵, the legislature⁶ and the judiciary⁷.

Public Law in context

not every country with a ‘democratic’ constitution is a democracy

It is important to note that not every country is a democracy and even totalitarian states can have written constitutions. An example of this is the Democratic Republic of Korea (North Korea). The preamble of the North Korean constitution includes the following:

Comrade Kim Il Sung regarded ‘believing in the people as in heaven’ as his motto, was always with the people, devoted his whole life to them, took care of and guided them with a noble politics of benevolence, and turned the whole society into one big and united family.

The great leader Comrade Kim Il Sung is the sun of the nation and the lodestar of the reunification of the fatherland. Comrade Kim Il Sung set the reunification of the country as the nation’s supreme task, and devoted all his work and endeavors entirely to its realization.’⁸

Article 4 of the North Korean constitution states that ‘[t]he sovereignty of the DPRK resides in the workers, peasants, working intellectuals and all other working people. The working people exercise power through their representative organs – the Supreme People’s Assembly and local people’s assemblies at all levels.’⁹ Whilst Article 6 states ‘[t]he organs of State power at all levels, from the county People’s Assembly to the SPA, are elected on the principle of universal, equal and direct suffrage by secret ballot.’¹⁰ From reading the constitution, it is clear that the context in which it was first drafted and the fact that North Korea is still technically at war with South Korea and its allies, including the United States, have helped to shape the particular characteristics of the constitution. The effective purpose of the constitution in purporting to create a democracy is frustrated by reality and the realpolitik of the regime. However, it should be remembered that a dictatorship can have a constitution that provides the illusion of democracy without meaning that this reflects the reality. Equally, a country could be a fully functioning democracy and not have a written constitution.

This chapter is about the constitution of the United Kingdom and it is hoped that the above context will provide scope to reflect on what we mean by a UK constitution. It is important to appreciate just how controversial an area this is. If you ask your lecturers whether the United Kingdom has a constitution, you might receive a number of very different responses. This is because many academics argue that the United Kingdom does not have a constitution. They argue that this is because it is not codified, i.e. written down in a single document such as the constitution of the United States of America. So, does this mean that the United Kingdom’s constitution is unwritten? Technically large parts of what we consider constitutional sources are written down, such as important statutes (Acts of Parliament). However, other sources of the constitution are unwritten, such as constitutional conventions. Writing in 1996 Stephen M Griffin observed that ‘[s]ome scholars have seen a convergence … between the “written” American Constitution and the “unwritten” British constitution. As the British constitution became more written and formalized over time, the American Constitution became encrusted with political compromise and judicial interpretation.’¹¹ This means that over 20 years ago a leading US academic regarded the UK’s constitution as becoming more written. Today this trend has greatly increased, and this will be addressed throughout this book. The following table provides some examples of this:

Table 1.1 Status of important constitutional principles

Important constitutional principle	Historically it was unwritten	Today it is written
The Prime Minister’s ability to call a general election.	Historically unwritten as a constitutional convention.	This is now written as the rules about calling a general election are outlined in the Fixed-term Parliaments Act 2011. Please note the Fixed-term Parliaments Act 2011 will soon be repealed.
Holding a vote of no confidence in the government.	Historically unwritten as a constitutional convention.	This is now written as the rules about votes of no confidence are fou...