Constitutional Law 3103 First-Class Part A Take Home Exam Winter Term 2020

Updated: Nov 3, 2020

Submitted By: Alexandra Cook


Part A) Essay

Introduction

The UK Constitution has both written and unwritten rules, allowing for continuous development within changing circumstances and evolving in a way that allows the state to develop the law for the benefit of citizens. It is made up of various legal and non-legal sources including common law, statute law, EU law, constitutional conventions, and the royal prerogative. A brief history of the UK constitution begins with Magna Carta (1215) which was the first written UK constitutional document introducing the principle of the Rule of Law and the first check in power to the UK Monarchy. The Bill of Rights (1689) followed, an act introducing basic civil rights and putting into a written document, the first of its kind, the process of the UK monarchical inheritance introducing further restraints to the power of the Monarchy. Documents of similar nature followed with a further reduction to the Monarchy’s power, where eventually its status was reduced to what it is today, an effective figure head of the state.

The British Constitution is constantly developing, due to the people of the UK now effectively holding power through the legislative, executive, and judiciary bodies. Where the UK Constitution splits to become British is marked by the effective devolution of Scotland, Wales, and Northern Ireland, leaving the term British referring to England. While written principles of the constitution are documented by precedents from common and EU law, along with statute law as legal rules, constitutional conventions make up the non-legal rules. Constitutional conventions are the unwritten principles of law; the morals of society that are inherently known and developed into legal rules concerning constitutional matters in order to supplement the law (Elliot & Thomas 2017). This essay will explore the effect constitutional conventions plays in British constitutional life by using the Jennings test to determine how a practice amounts to a convention, leading to a large role in continuously developing the British constitution.

Constitutional Conventions

Elliot and Thomas (2017) describe constitutional conventions as “’unwritten rules of the game’ by which all parties implicitly agree to abide.” Dicey (1959) defines them as “’understandings, habits, or practices’ that ‘regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials.” In more recent years, there has been attempts to codify conventions in order to officiate these practices in authoritative form. The most well-known version of a ‘written’ British convention is the Ministerial Code 2010, where a formal code was created to set out the principles and standards expected of Ministers while remaining non-legally binding.

The high-profile case of Miller v Prime Minister v Advocate General for Scotland (2019) highlights the need for certain codifications regarding members of sovereign power because it is evident that not at all follow these unwritten rules. The case concerned the issue of the UK Prime Minister (PM) behaving unlawfully by abusing the limits of the royal prerogative power held by parliamentary sovereignty to prorogue parliament. By applying the Jennings test to the PM’s practice of proroguing parliament we have to look at precedent, whether the PM was bound to do so, and the reason behind it. The precedent was parliament is rarely prorogued for longer than two weeks; the PM was not bound to prorogue as there was 5 weeks left in the current parliamentary session; and the reasoning behind his decision was to prevent the current constitutional legislation on the table during the session concerning the UK leaving the EU from being passed (Konstadinides and Nikolaidis 2019). It is expected that the Queen sign-off and give her approval when asked by the PM even if she may not personally agree, as the UK parliament is a democratic institution and the Monarch is unelected (Elliot and Thomas 2017). The Queen’s royal prerogative is a constitutional convention in the sense that if she were to ever disagree or not sign off on an issue brought forth to her from parliament, there would be backlash as this would be deemed fundamentally undemocratic. The Miller (2019) case presents a contrast, where we see that this convention can also backfire on the recommendation from Parliament if acting unconstitutionally and undemocratically while the Queen still has to approve.

We see a similar case with the Sewell Convention concerning the devolved nations of the UK, where legislation is premised on the continuing sovereignty of the UK parliament while continuing to legislate, except with regard to devolved matters without the consent motion of the devolved nations parliaments and assemblies. While effectively the Sewel motion allows the devolved nations to govern their own nation with say ‘local’ laws, they must still adhere and follow convention rights under UK laws. This was challenged in Somerville v Scottish Ministers (2007), where a certain provision under the UK Human Rights Act 1998 (HRA) was held not to apply to proceedings under the Scotland Act. While the HRA inherently stands as a constitutional convention, as a devolved nation Scotland held the right to apply their own provisions under their act to govern in relevant ways dealing with acts of failures incompatible with convention rights. This is in direct comparison to the Miller (2019) case where the constitutional convention outweighed UK parliamentary sovereignty powers, whereas in the Somerville (2007) case The Scotland Act itself was able to set a sort of written constitutional precedent in determining what constituted a Scottish constitutional conventional right.

The case of Thoburn v Sunderland City Council (2002) introduced the notion by Laws LJ of constitutional statutes vs ordinary statutes, where the doctrine of implied repeal should not apply to constitutional statutes where the latter includes the legal relationship between citizen and state in some general manner. While this introduced somewhat harder measures to amend constitutional legislation, it still remains that constitutional legislation can be repealed as long as it is within the same legislation, effectively rendering constitutional conventions harder to implement and assert with a degree of permanence.

Conclusion

The case of Somerville (2007) highlights why not having written constitutional conventions as legally binding rules is beneficial to British constitutional life. The nations of Wales, NI, and Scotland having the right to devolve and legislate their own assemblies would not be possible if constitutional conventions were legally binding. There would be no room for growth, development, or updates in terms of societal norms and values. In regard to the doctrine of separation of powers of states being completely separated, the legal enactment of constitutional conventions would produce a breach of this doctrine and present a shift in power in regulating each individual power of the legislative and executive.

Constitutional conventions play the role of balancing out the powers, holding elected officials accountable for being responsible for the democratic rights and wishes of the British people. What we see with in the above cases is that the UK constitution, specifically within convention rights and written documentation, lacks permanence. It is too easy for legislation to amend British constitutional matters, bringing forth the question how does one really define constitution? Certainly, fundamental principles or established precedents cannot accurately define what the British constitution is if it is constantly changing. Or could this be a new way of defining the meaning of a constitution?