UK CONSTITUTION • ↑ Delegated legislation ∴ less scrutiny 4) Deploy Armed Forces à REFORM: specific war powers need consultation?
• Multi-level governing • Convention: Must ask Parliament for consent
• Bogdanor (2007): ‘Set of most important rules + common understandings…regulates the o EU law: ↑ influence on decision-making, legislation, rulings o HOC ‘Taming the Prerogative’ report: Legislate this, w/o ↓ Govt’s ability to take swift
relations amongst country’s governing institutions + people’ o Devolution: decentralised executive + legislative powers to Scottish, Welsh, NI institutions action to protect national security
o Rulebook that stipulates powers of institutions + how that power relates to citizens • Rise of judges, b/c HRA/ECA Chandler – It’s for govt to decide what’s best for the state, not courts
• Drafts constitution b/c independence: wars, revolutions, political crises: e.g. French revolution • Institutional crisis? o HOL constitutional committee: No, develop a convention.
o No public confidence in politicians: ↓ voter turnouts, e.g. expenses scandal à Strike balance: Limit disclosure of info to maintain operational security VS. Give
Written v Unwritten o 2009 poll: 71% dissatisfied w/ how Parliament was doing its job Parliament sufficient info to make informed decision
• Written: important rules laid down in a single, legally binding document ∴ ≠ appealing to place Parliament at centre of constitution + Flexible: easily amended + failure to comply ≠ unlawful
+ All key provisions in 1 documents + ↑ Legitimacy, ↑ Accountability
- Won’t cover everything, conventions fill the gaps! Future of WM?
- HOL CC: Govt sets agenda for HOC + ↑ publicity on need for military actions ∴
- America: doesn’t include judicial review • Reinvigorate the system: Recent reforms that ensures govt is accountable -
weakens Parliamentary response ≠ accountable
+ Clearly states how state should operate • ‘Parallel chamber’: ↑ time for debates that scrutinise policies + performance of govt
+ ↑ Morale for troops to know country is supporting them
- Litigation over the precise meaning of words • ‘Topical debates’: Enables MPs to call ministers to account for current concerns - VS. ↓ b/c statute means troops criminalized for ‘unlawful’ deployment + refuse to obey orders
+ Protects citizens from govt abuse • MPs can use expert evidence when scrutinising Bills - Undermines operational effectiveness
- Inflexible to change ∴ hard to amend outdated provisions, e.g. USA removed right • ‘Draft bills’ before legislative process = ↑ consultation + scrutiny - Necessity ∴ shouldn’t ask Parliament whether to go war = inflexible
to own slaves • ↑ Popular participation - Checks + balances/litigation = gridlock!
- Rigid: entrenched, clauses require special procedure to amend o Citizens’ juries to discuss real issues - Only given limited info ≠ informed decisions
- Australia: rarely amended = inflexible Requires o Bogdanor (2009): Constitutional reform hasn’t redistributed power to voters = weakness - Compromises operational security by publicly discussing prior to action
- Switzerland, Ireland: ↑ constitutional amendments = more flexible referendums ∴ proposes ↑ use of referendums
- US: requires ⅔ congress, ¾ state majority to amend • ↑ Legal constitution Overall
• Unwritten: No single legally binding document setting out important rules o Foster (2005): ‘Replace conventions by law’ = clearer + legally enforceable • Not many conventions to limit powers ∴ Parliament = weak control over prerogative
o Bradley: ‘Body of legal rules w/ no special legal status’ • Disintegrate UK: Scottish referendum in 2014 Codify prerogative powers
+ Flexible: responsive to changing circumstances ∴ state can develop law to benefit citizens • Britain leave Europe? FOR: In principle
- Appears ‘uncertain’ b/c no single agreed source of constitutional law o UKIP: 2nd largest party in 2009 in European Parliament elections + Democratic: ↓ scope of discretionary powers
- State free to abuse its powers + remove our rights o Conservatives = anti-integrationist positions, but adamant on remaining a member state + Defines powers ∴ know how it will be used + under what basis
à But, UK had a sophisticated system that respects fundamental rights § 1972: Signed treaty to be EEC member + Accountability: Easier to scrutinise b/c there’s an authority to point to
+ Encourages an evolving constitution § John Major signed Maastricht Treaty = created EU + ROL: Easier to see limits of prerogative = ↑ certainty + govt under the law
§ Gee (2010): Democratic process IS the constitution, b/c political accountability: revise,
+ SoP: Rebalances power from executive to legislature, legislature has ↑ role = ↑ accountability
amend, reject legislature
o Israel, New Zealand, UK: Many written sources, but not in a single document
o ‘If it ain’t broke, don’t fix it’: UK constitutional arrangement works well + change is unnecessary
ROYAL PREROGATIVE *Sufficient reforms? Or are more needed? AGAINST: In practice
- Difficult to define ∴ putting into a statute = problematic
o Not necessarily flawed, but if written constitution = clarifies current position? - Loss of flexibility:
o No set definition, just theories: • MOJ (2009): Residual prerogative powers provides useful flexibility in emergencies, e.g. go to
Multiple sources of the constitution
o Blackstone: Powers unique/exclusive to the crown war immediately, no time for Parliament to debate + enact laws
1) Statutes: sets out specific powers of state + protection for citizens
à Overlooks crown’s economic power, doesn’t come within this definition! - Courts can judicially review prerogative powers, e.g. who PM elects as minister
- E.g. BoR 1967, PA 1911 & 1949, HRA 1998, HOL Act 1999 (removed rights of majority of
o Locke: Power of doing public good w/o a rule - Necessity
hereditary peers to sit + vote in HOL), CRA 2005 (LC role + UKSC), FTPA 2011 à E.g. necessity in emergencies: should not wait for Parliament to enact a law - Discretionary govt powers = necessary for quick + efficient decision-making
2) Judicial decisions à Violates ROL, needs a source of law – hard to see limits to prerogative?
o Statutory interpretation: ‘principle of legality’ only interpret if ambiguous Legal control by STATUTES
o Dicey: Remaining residual + discretionary power of the crown ∴ cannot create new powers
o Common law: 1) Dissolving Parliament
à Substance?
§ ↑ justification for rulings b/c based on previous precedents • Convention: Power exercised upon PM’s request
o Historically, powers exercised by the monarch w/o parliamentary approval
§ Obiter = discuss important constitutional principles, e.g. PS, SOP, ROL Unfair political advantage to PM over other parties, to call election when party did good
o In practice, powers exercised by the executive on her behalf
Entick v Carrington à No right to search property w/o lawful authority • Abolished by Fixed Term Parliament Act 2011: Set parliamentary term to 5 years
3) Prerogative Examples o Moved big power from PM to Parliament: 2/3 majority / vote of no confidence within 14 days
4) Conventions • Domestic prerogatives: Appoint ministers, royal assent, leads to early dissolution
• Not all are constitutional, e.g. PM spends xmas at Chequers - Old: Dissolve Parliament + control of Civil Service o Ryan (2012): Executive has majority in HOC ∴ still govt manipulation à No real change?
AG v Manual - Non-justiciable, cannot limit legislative capacity of Parliament • Foreign prerogatives: Declare war, deploy troops, treaty-making, controls issuing passports - Before, PM openly manipulated when called elections, now hidden!
5) EU law Limited by CONVENTIONS à regulates exercise of prerogative power - Requires control mechanisms
6) International law o Brazier: Appears electoral stability = politically helpful for ‘new’ coalition govt
1) Monarch appoints PM
- Dualist state: Usually, unincorporated treaties = no legal effect if not implemented - BUT swiftly passed, no public consultation/pre-legislative scrutiny for a significant
• Convention: appoints leader of political party w/ most votes at election
o Cabinet Manual 2011: Recorded rules + practices, but not a source of constitutional rules • Brazier: If no political solution for hung parliament, monarch may need to intervene constitutional measure!
o HOL: Limited value, only descriptive + Written by Civil servants for themselves > politicians o Lord Howarth: ‘Addressing a non-problem’, more democratic to call an early election b/c let
• Blackburn: mistaken + outdated role
- Not formally approved by Parliament people decide!
§ B/c in practice: purely a symbolic event ∴ limited power à May 2010: did not intervene
o HOC Political and Constitutional Reform Committee: Good starting point to produce a o Ryan:
constitution b/c sparks debate on how rules should be written down 2) Appoints ministers § ↑ Certainty = ↑ Electoral turnout
o Dec 2012: no debate yet • Convention: Exercised by Queen upon PM’s advice § Allows Parliament to plan better
§ May ignore wishes of PM
Westminster Model = democratic parliamentary system 2) Treaty-making
§ In practice, bound to appoint those chosen by elected leader = ↑ democratic legitimacy
o Set of arrangements where: • Convention: Ponsonby rule = Before executive ratified treaties, must present to Parliament for 21
§ Bagehot: right to be consulted, encouraged, warned = dignified > efficient role
o Govt drawn from HOC days w/ explanatory memoranda for scrutiny
o Parliament has unlimited legislative competence 3) Royal assent • Constitutional Reform and Governance Act 2010
o Ministers = politically accountable to Parliament • Convention: Royal Assent must be given every Bill approved by Parliament 1) Abolished prerogative to control the civil service, now in statute
- Scrutinised by media, pressure groups, select committees o In theory, doesn’t need to give 2) Treaty-making powers *Not abolished; only CODIFIED!
Problems o Barber: Unlikely to refuse b/c undemocratic + PM has majority support of HOC - Codifies Ponsonby Convention on a statutory footing
• Govt controls Parliament - In practice, merely a figurehead. + ↑ public, b/c explanatory memorandum
o Steers through its drafted legislation, b/c controls HOC agenda + timetable o Not refused since 1708 + Prompts debate ∴ dialogue between Parliament + Executive
∴ little chance for MPs to initiate debate + call ministers to account o Constitutional safeguard? + Parliament may block ratifications = accountable?
§ If unconstitutional/anti-HR bill = may refuse Royal Assent in emergencies - Ryan: Executive controls HOC ∴ inadequate control of this power
• Lacks SOP: Easy to detect changed role of PM + Cabinet
§ Retains reserve powers, but limited by convention - Ratifying EU treaties legally constrained by European Union Act 2011 - referendums!
- Thatcher, Blair = Prime Ministerial govt
§ 1987: Fiji had military coup to remove PM, but Queen didn’t react ∴ not a - Most treaties are technical/no political interests ∴ unrealistic for Parl to scrutinise all treaties
- Major, Brown = collective cabinet govt ∴ Cabinet had ↑ influence over govt decisions
constitutional safeguard? - MPs need aid from lawyers
• Multi-level governing • Convention: Must ask Parliament for consent
• Bogdanor (2007): ‘Set of most important rules + common understandings…regulates the o EU law: ↑ influence on decision-making, legislation, rulings o HOC ‘Taming the Prerogative’ report: Legislate this, w/o ↓ Govt’s ability to take swift
relations amongst country’s governing institutions + people’ o Devolution: decentralised executive + legislative powers to Scottish, Welsh, NI institutions action to protect national security
o Rulebook that stipulates powers of institutions + how that power relates to citizens • Rise of judges, b/c HRA/ECA Chandler – It’s for govt to decide what’s best for the state, not courts
• Drafts constitution b/c independence: wars, revolutions, political crises: e.g. French revolution • Institutional crisis? o HOL constitutional committee: No, develop a convention.
o No public confidence in politicians: ↓ voter turnouts, e.g. expenses scandal à Strike balance: Limit disclosure of info to maintain operational security VS. Give
Written v Unwritten o 2009 poll: 71% dissatisfied w/ how Parliament was doing its job Parliament sufficient info to make informed decision
• Written: important rules laid down in a single, legally binding document ∴ ≠ appealing to place Parliament at centre of constitution + Flexible: easily amended + failure to comply ≠ unlawful
+ All key provisions in 1 documents + ↑ Legitimacy, ↑ Accountability
- Won’t cover everything, conventions fill the gaps! Future of WM?
- HOL CC: Govt sets agenda for HOC + ↑ publicity on need for military actions ∴
- America: doesn’t include judicial review • Reinvigorate the system: Recent reforms that ensures govt is accountable -
weakens Parliamentary response ≠ accountable
+ Clearly states how state should operate • ‘Parallel chamber’: ↑ time for debates that scrutinise policies + performance of govt
+ ↑ Morale for troops to know country is supporting them
- Litigation over the precise meaning of words • ‘Topical debates’: Enables MPs to call ministers to account for current concerns - VS. ↓ b/c statute means troops criminalized for ‘unlawful’ deployment + refuse to obey orders
+ Protects citizens from govt abuse • MPs can use expert evidence when scrutinising Bills - Undermines operational effectiveness
- Inflexible to change ∴ hard to amend outdated provisions, e.g. USA removed right • ‘Draft bills’ before legislative process = ↑ consultation + scrutiny - Necessity ∴ shouldn’t ask Parliament whether to go war = inflexible
to own slaves • ↑ Popular participation - Checks + balances/litigation = gridlock!
- Rigid: entrenched, clauses require special procedure to amend o Citizens’ juries to discuss real issues - Only given limited info ≠ informed decisions
- Australia: rarely amended = inflexible Requires o Bogdanor (2009): Constitutional reform hasn’t redistributed power to voters = weakness - Compromises operational security by publicly discussing prior to action
- Switzerland, Ireland: ↑ constitutional amendments = more flexible referendums ∴ proposes ↑ use of referendums
- US: requires ⅔ congress, ¾ state majority to amend • ↑ Legal constitution Overall
• Unwritten: No single legally binding document setting out important rules o Foster (2005): ‘Replace conventions by law’ = clearer + legally enforceable • Not many conventions to limit powers ∴ Parliament = weak control over prerogative
o Bradley: ‘Body of legal rules w/ no special legal status’ • Disintegrate UK: Scottish referendum in 2014 Codify prerogative powers
+ Flexible: responsive to changing circumstances ∴ state can develop law to benefit citizens • Britain leave Europe? FOR: In principle
- Appears ‘uncertain’ b/c no single agreed source of constitutional law o UKIP: 2nd largest party in 2009 in European Parliament elections + Democratic: ↓ scope of discretionary powers
- State free to abuse its powers + remove our rights o Conservatives = anti-integrationist positions, but adamant on remaining a member state + Defines powers ∴ know how it will be used + under what basis
à But, UK had a sophisticated system that respects fundamental rights § 1972: Signed treaty to be EEC member + Accountability: Easier to scrutinise b/c there’s an authority to point to
+ Encourages an evolving constitution § John Major signed Maastricht Treaty = created EU + ROL: Easier to see limits of prerogative = ↑ certainty + govt under the law
§ Gee (2010): Democratic process IS the constitution, b/c political accountability: revise,
+ SoP: Rebalances power from executive to legislature, legislature has ↑ role = ↑ accountability
amend, reject legislature
o Israel, New Zealand, UK: Many written sources, but not in a single document
o ‘If it ain’t broke, don’t fix it’: UK constitutional arrangement works well + change is unnecessary
ROYAL PREROGATIVE *Sufficient reforms? Or are more needed? AGAINST: In practice
- Difficult to define ∴ putting into a statute = problematic
o Not necessarily flawed, but if written constitution = clarifies current position? - Loss of flexibility:
o No set definition, just theories: • MOJ (2009): Residual prerogative powers provides useful flexibility in emergencies, e.g. go to
Multiple sources of the constitution
o Blackstone: Powers unique/exclusive to the crown war immediately, no time for Parliament to debate + enact laws
1) Statutes: sets out specific powers of state + protection for citizens
à Overlooks crown’s economic power, doesn’t come within this definition! - Courts can judicially review prerogative powers, e.g. who PM elects as minister
- E.g. BoR 1967, PA 1911 & 1949, HRA 1998, HOL Act 1999 (removed rights of majority of
o Locke: Power of doing public good w/o a rule - Necessity
hereditary peers to sit + vote in HOL), CRA 2005 (LC role + UKSC), FTPA 2011 à E.g. necessity in emergencies: should not wait for Parliament to enact a law - Discretionary govt powers = necessary for quick + efficient decision-making
2) Judicial decisions à Violates ROL, needs a source of law – hard to see limits to prerogative?
o Statutory interpretation: ‘principle of legality’ only interpret if ambiguous Legal control by STATUTES
o Dicey: Remaining residual + discretionary power of the crown ∴ cannot create new powers
o Common law: 1) Dissolving Parliament
à Substance?
§ ↑ justification for rulings b/c based on previous precedents • Convention: Power exercised upon PM’s request
o Historically, powers exercised by the monarch w/o parliamentary approval
§ Obiter = discuss important constitutional principles, e.g. PS, SOP, ROL Unfair political advantage to PM over other parties, to call election when party did good
o In practice, powers exercised by the executive on her behalf
Entick v Carrington à No right to search property w/o lawful authority • Abolished by Fixed Term Parliament Act 2011: Set parliamentary term to 5 years
3) Prerogative Examples o Moved big power from PM to Parliament: 2/3 majority / vote of no confidence within 14 days
4) Conventions • Domestic prerogatives: Appoint ministers, royal assent, leads to early dissolution
• Not all are constitutional, e.g. PM spends xmas at Chequers - Old: Dissolve Parliament + control of Civil Service o Ryan (2012): Executive has majority in HOC ∴ still govt manipulation à No real change?
AG v Manual - Non-justiciable, cannot limit legislative capacity of Parliament • Foreign prerogatives: Declare war, deploy troops, treaty-making, controls issuing passports - Before, PM openly manipulated when called elections, now hidden!
5) EU law Limited by CONVENTIONS à regulates exercise of prerogative power - Requires control mechanisms
6) International law o Brazier: Appears electoral stability = politically helpful for ‘new’ coalition govt
1) Monarch appoints PM
- Dualist state: Usually, unincorporated treaties = no legal effect if not implemented - BUT swiftly passed, no public consultation/pre-legislative scrutiny for a significant
• Convention: appoints leader of political party w/ most votes at election
o Cabinet Manual 2011: Recorded rules + practices, but not a source of constitutional rules • Brazier: If no political solution for hung parliament, monarch may need to intervene constitutional measure!
o HOL: Limited value, only descriptive + Written by Civil servants for themselves > politicians o Lord Howarth: ‘Addressing a non-problem’, more democratic to call an early election b/c let
• Blackburn: mistaken + outdated role
- Not formally approved by Parliament people decide!
§ B/c in practice: purely a symbolic event ∴ limited power à May 2010: did not intervene
o HOC Political and Constitutional Reform Committee: Good starting point to produce a o Ryan:
constitution b/c sparks debate on how rules should be written down 2) Appoints ministers § ↑ Certainty = ↑ Electoral turnout
o Dec 2012: no debate yet • Convention: Exercised by Queen upon PM’s advice § Allows Parliament to plan better
§ May ignore wishes of PM
Westminster Model = democratic parliamentary system 2) Treaty-making
§ In practice, bound to appoint those chosen by elected leader = ↑ democratic legitimacy
o Set of arrangements where: • Convention: Ponsonby rule = Before executive ratified treaties, must present to Parliament for 21
§ Bagehot: right to be consulted, encouraged, warned = dignified > efficient role
o Govt drawn from HOC days w/ explanatory memoranda for scrutiny
o Parliament has unlimited legislative competence 3) Royal assent • Constitutional Reform and Governance Act 2010
o Ministers = politically accountable to Parliament • Convention: Royal Assent must be given every Bill approved by Parliament 1) Abolished prerogative to control the civil service, now in statute
- Scrutinised by media, pressure groups, select committees o In theory, doesn’t need to give 2) Treaty-making powers *Not abolished; only CODIFIED!
Problems o Barber: Unlikely to refuse b/c undemocratic + PM has majority support of HOC - Codifies Ponsonby Convention on a statutory footing
• Govt controls Parliament - In practice, merely a figurehead. + ↑ public, b/c explanatory memorandum
o Steers through its drafted legislation, b/c controls HOC agenda + timetable o Not refused since 1708 + Prompts debate ∴ dialogue between Parliament + Executive
∴ little chance for MPs to initiate debate + call ministers to account o Constitutional safeguard? + Parliament may block ratifications = accountable?
§ If unconstitutional/anti-HR bill = may refuse Royal Assent in emergencies - Ryan: Executive controls HOC ∴ inadequate control of this power
• Lacks SOP: Easy to detect changed role of PM + Cabinet
§ Retains reserve powers, but limited by convention - Ratifying EU treaties legally constrained by European Union Act 2011 - referendums!
- Thatcher, Blair = Prime Ministerial govt
§ 1987: Fiji had military coup to remove PM, but Queen didn’t react ∴ not a - Most treaties are technical/no political interests ∴ unrealistic for Parl to scrutinise all treaties
- Major, Brown = collective cabinet govt ∴ Cabinet had ↑ influence over govt decisions
constitutional safeguard? - MPs need aid from lawyers
