United Kingdom constitutional law

Parliament at the Palace of Westminster is central to the UK's democratic constitution. The House of Commons represents around 65 million people in 650 UK constituencies. The House of Lords remains unelected but can be overruled.[1]

United Kingdom constitutional law concerns the political governance of the United Kingdom of Great Britain and Northern Ireland. As one of the oldest continuous political systems on earth, the UK constitution has never been written into a single code, but principles have emerged over the centuries. The Magna Carta 1215, forced the King to free the church from the state, to call "common counsel" or Parliament, hold courts in a fixed place, a fair trial, free movement of people to trade, and to give commoners rights to use the land.[2] By the Bill of Rights 1689, Parliament had finally won supremacy over the church, the courts, and the King, and said that the 'election of members of Parliament ought to be free'. By the Representation of the People (Equal Franchise) Act 1928, every adult man and woman was finally entitled to vote for Parliament. The UK was a founding member of the International Labour Organisation, the United Nations, the Commonwealth, the Council of Europe, the European Union, and the World Trade Organisation.[3] Parliamentary sovereignty, the rule of law, democracy, and internationalism, have consistently guided the UK's political system to advance the social and economic development of its people.

History

John Ball, a leader of the Peasants' Revolt of 1381 following repression after the Black Death, preached that "matters goeth not well to pass in England, nor shall not do till everything be common, and that there be no villains nor gentlemen, but that we may be all unied [sic] together, and that the lords be no greater masters than we be."[4]
The Glorious Revolution of 1688 confirmed Parliament's supremacy over the monarch, represented by John Locke's Second Treatise on Government (1689). The led the foundations for a peaceful unification of England and Scotland in the Act of Union 1707.
The Chartists met on Kennington Common during the Revolutions of 1848 to demand democratic reform.
The British Empire ended after WW2 as countries, where democracy and freedom were suppressed, demanded independence. The Commonwealth is now open to any country committed to peace, liberty, equality, and development, as in the Harare Declaration of 1991.

Principles

In French, parler means "to talk", and the old French developed into the English word "Parliament", painted by Claude Monet in 1904. Though not codified, the UK's constitution is written in hundreds of Acts of Parliament, court cases, and in documented conventions. Its essential principles, though continually evolving, are Parliamentary sovereignty, the rule of law, democracy and internationalism.[5]

While the United Kingdom's constitution has not been codified into a single document, like the Constitution of South Africa or the Grundgesetz in Germany, general principles run through the law.[6] The main sources of law, which compose the UK constitution (or "constitute" the body politic) are Acts of Parliament, cases decided by courts, and conventions on how the Cabinet, the Prime Minister, Parliament or the Monarch conduct themselves.[7] Through legislation, case law and conventions, at least four main principles are usually recognised. First, parliamentary sovereignty is a foundational principle. Through the English Reformation, the Civil War, the Glorious Revolution of 1689 and the Act of the Union 1707, Parliament became the dominant source of law, above the judiciary, executive, monarchy, or church. Parliamentary sovereignty means Parliament can make or unmake any law, a fact that is usually justified by Parliament upholding other principles, namely the rule of law, democracy, and internationalism. Second, the rule of law has run through the constitution since the Magna Carta 1215 and Petition of Right 1628. This means the government may only conduct itself according to legal authority, including respect for human rights.[8] Third, at least since 1928, democracy has become a fundamental constitutional principle. Originally only wealthy, property-owning men held rights to vote for the House of Commons, while the King or a hereditary House of Lords dominated politics. But from 1832 adult citizens slowly won the right to universal suffrage.[9] Fourth, the UK constitution is international: Parliament has consistently integrated and augmented its practical power through its membership in international organisations, including the International Labour Organisation,[10] the United Nations, the European Convention on Human Rights, the European Union, the World Trade Organisation, and the International Criminal Court, although EU law membership was challenged by the 2016 Brexit referendum.

Parliamentary sovereignty

Parliament was recognised as a forum for the King for "common counsel" before the Magna Carta 1215.
  • Leslie Stephen, The Science of Ethics (1882) 145, "Lawyers are apt to speak as though the legislature were omnipotent, as they do not require to go beyond its decisions. It is, of course, omnipotent in the sense that it can make whatever laws it pleases, inasmuch as a law means any rule which has been made by the legislature. But from the scientific point of view, the power of the legislature is of course strictly limited. It is limited, so to speak, both from within and from without; from within, because the legislature is the product of a certain social condition, and determined by whatever determines the society; and from without, because the power of imposing laws is dependent upon the instinct of subordination, which is itself limited. If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it."

Rule of law

Democracy

The Scottish Parliament at Holyrood has 129 MSPs with extensive powers, including taxation.
City Hall, London is the home of the Mayor of London and the Greater London Assembly.

Internationalism

The first meeting of the United Nations General Assembly took place in 1946 at Methodist Central Hall in London, opened by Prime Minister Clement Attlee.[11]
The 2016 Brexit referendum challenged UK membership of the European Union. 51.89% of those voting opted to leave, but expressed no preference of the terms, while 48.11% voted to remain, on a 72.21% turnout.

Institutions

Parliament

The House of Commons is the most important body in the UK constitution. Its Members of Parliament are democratically elected by constituencies across the UK, and the parties who have a majority in the Commons form the UK government.
The House of Lords is a chamber mostly appointed by the Prime Minister, loosely based on the Lords' expertise, achievement, or political affiliation. Since the abolition of most hereditary peers, there has been ongoing debate about whether or how to elect the House of Lords.

Judiciary

The UK Supreme Court on Parliament Square.

Executive

The Prime Minister exercises political power of the UK government, so long as they command majority support of the House of Commons.
The task of the official opposition, currently led by Jeremy Corbyn of the Labour Party, is to hold the government and the Prime Minister to account in and out of Parliament.

Public services

UK central government expenditure, 2016-17. Social protection includes pensions and welfare.[12]

Administrative law

Any person in the UK who is significantly affected by a public body's act can challenge a decision by judicial review. The claims usually beginning in the High Court.

Administrative law, through judicial review, is an essential method to hold executive power and public bodies accountable to law. Constitutional principles often emerge through judicial review, because every public body, whose decisions affect people's lives, is created and bound by law. A person who has a "sufficient interest" can apply to the High Court,[13] within three months of the grounds of the cause of action becoming known.[14] Any public body, or private bodies exercising public functions,[15] can be the target of judicial review. A claimant can argue that a decision was unlawful in five main types of case:[16] (1) it exceeded the lawful power of the body or used its power for an improper purpose,[17] (2) violated a human right, or a legitimate expectation,[18] (3) failed to exercise relevant and independent judgement,[19] (4) acted unreasonably or disproportionately,[20] (5) exhibited bias or a conflict of interest.[21] As a remedy, a claimant can ask for the public body's decisions to be declared void, or it could ask for an injunction to prevent the body from acting unlawfully. Compensation could be payable in tort or occasionally contract.

Procedure

Grounds for judicial review

Public body liability

  • Senior Courts Act 1981 s 31(1)
  • Duncan v Cammell Laird & Co [1942] AC 624
  • R (Khawaja) v Home Secretary [1984] AC 74

Human rights

  • HRA 1998
  • Ghaidan v Godin-Mendoza [2004] UKHL 30
  • Bellinger v Bellinger [2003] UKHL 21

Liberty

Association

  • Duncan v Jones [1936] 1 KB 218
  • DPP v Jones [1999] 2 AC 240
  • R (Laporte) v Gloucestershire Chief Constable [2006] UKHL 55
  • Austin v Metropolitan Police Commissioner [2009] UKHL 5
  • Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504
  • City of London v Samede [2012] EWCA Civ 160

See also

Notes

  1. ↑ Parliament Act 1911 and Parliament Act 1949
  2. ↑ Magna Carta 1215 clauses 1 ('... the English church shall be free...'), 12 and 14 (no tax 'unless by common counsel of our kingdom...'), 17 ('Common pleas shall... be held in some fixed place'), 39-40 ('To no one will we sell, to no one will we refuse or delay, right or justice'), 41 ('merchants shall have safe and secure exit from England, and entry to England') and 47-48 (land taken by the King 'shall forthwith be disafforested').
  3. ↑ The ILO was formed as part of the (now defunct) League of Nations in the Versailles Treaty 1919 Part XIII. The UN was formed in 1945. The Commonwealth of Nations was formally established by the London Declaration of 1949. The Council of Europe was created in 1950. The European Union was formed by the Maastricht Treaty 1992. The World Trade Organisation was created in 1994.
  4. ↑ J Froissart, Froissart's Chronicles (1385) translated by GC Macaulay (1895) 251–252. Ball went on, "What have we deserved, or why should we be kept thus in servage? We be all come from one father and one mother, Adam and Eve: whereby can they say or shew that they be greater lords than we be, saving by that they cause us to win and labour for that they dispend? They are clothed in velvet and camlet furred with grise, and we be vestured with poor cloth: they have their wines, spices and good bread, and we have the drawing out of the chaff and drink water: they dwell in fair houses, and we have the pain and travail, rain and wind in the fields; and by that that cometh of our labours they keep and maintain their estates: we be called their bondmen, and without we do readily them service, we be beaten; and we have no sovereign to whom we may complain, nor that will hear us nor do us right."
  5. ↑ See AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) chs 1-6
  6. ↑ AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018) chs 1-6
  7. ↑ On Conventions, see Attorney General v Jonathan Cape Ltd [1975] 3 All ER 484
  8. ↑ See T Bingham, The Rule of Law (2011) and Entick v Carrington [1765] EWHC KB J98
  9. ↑ Great Reform Act 1832 (common property qualification rules for all boroughs and counties), Representation of the People Act 1867 (extended the franchise to around 1/3 of men), Representation of the People Act 1884 (extended the male franchise), Representation of the People Act 1918 (enabled all men to vote over 21, and women over 30 with property), and Representation of the People (Equal Franchise) Act 1928 (enabled equal suffrage of men at women age 21). The Representation of the People Act 1948 further abolished multiple votes for graduates of London, Cambridge and Oxford, and other University constituencies, and the Representation of the People Act 1969 lowered voting age to 18. Restrictions on prisoner voting were inserted by the Representation of the People Act 1983. British citizens abroad can vote under the Representation of the People Act 1985, but millions of UK residents, who pay taxation but do not have citizenship, are denied representation in Parliament.
  10. ↑ See the Appropriation Act 1923 Sch 4
  11. ↑ https://www.flickr.com/photos/un_photo/24147256982
  12. ↑ "Budget 2016" (PDF). HM Treasury. March 2016. p. 5.
  13. ↑ Senior Courts Act 1981 s 31(3)
  14. ↑ Civil Procedure Rules rule 54.5 claims can be made up to 'three months after the grounds to make the claim first arose', but the period can be shorter if legislation says so.
  15. ↑ R (Datafin) v Panel on Takeovers and Mergers [1987] QB 815
  16. ↑ Different books and cases categorise the grounds to review administrative discretion differently, as do different fields of law such as directors' duties in UK company law, unfair dismissal in UK labour law or implied terms in English contract law. Lord Diplock in the GCHQ case said the grounds were "illegality", "irrationality" and "procedural impropriety". A Le Sueur, M Sunkin and J Murkens, Public Law Text, Cases, and Materials (3rd edn 2016) ch 16 follows this. It is often, however, unclear how a procedural requirement of the law can be separated from substance, and it was thought that "irrationality" is too restrictive. AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2014) ch 24 now suggests substantive grounds, legitimate expectations and procedural grounds. In R (Baker) v Devon CC [1995] 1 All ER 73, 88, Sir Robin Cooke said 'The administrator must act fairly, reasonably and according to law. That is the essence and the rest is mainly machinery.' M Elliott and R Thomas, Public Law (3rd edn 2017) ch 12 generally follows this. Another categorisation of Lord Bingham, Rule of Law (2010) was 'Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purposes for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.' Contrast the Companies Act 2006 ss 171-177, codifying directors' duties.
  17. ↑ Ridge v Baldwin [1964] AC 40 (following law). Padfield v Minister of Agriculture [1968] AC 997 (improper purpose)
  18. ↑ Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (legitimate expectation rejected). R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 (legitimate expectation upheld)
  19. ↑ R v Home Secretary ex p Venables and Thompson [1998] AC 407 (irrelevant consideration). R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60 (independent judgement)
  20. ↑ Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (unreasonableness loosely defined)
  21. ↑ Porter v Magill [2001] UKHL 67 (bias). R v Bow Street Stipendiary Magistrate, ex p Pinochet (No 2) [2000] 1 AC 119 (possibility of a conflict of interest).

References

Articles
Books
Textbooks
  • AW Bradley, KD Ewing and CJS Knight, Constitutional and Administrative Law (2018)
  • A Le Sueur, M Sunkin and J Murkens, Public Law Text, Cases, and Materials (3rd edn 2016)
  • M Elliott and R Thomas, Public Law (3rd edn 2017)
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