THE BRITISH CONSTITUTION Language and Sources
Alison Riley
THE BRITISH CONSTITUTION Language and Sources
Alison Riley
WHAT IS A CONSTITUTION?
A legal document?
A set of rules and rights?
A fundamental law?
WHO IS AFFECTED BY A CONSTITUTION?
The people?
The rulers and state organs?
Consider …
The Italian Constitution
The U.S. Constitution
Any other constitutions you have heard of:
The Constitution of South Africa:
Signed by Nelson Mandela in 1996 in 11 languages
The French Constitution (Vth Republic)
A future constitution of Padania?
A future Scottish constitution?
… and the British constitution?
Compare the Constitution of the Italian Republic
Principi fondamentali
Art. 1
L'Italia è una Repubblica democratica, fondata sul lavoro.
Form of state: a democratic republic
La sovranità appartiene al popolo, che la esercita nelle forme e nei limiti della Costituzione.
Sovereignty belongs to the people
Sovereignty is exercised within constitutional limits
Parte prima DIRITTI E DOVERI DEI CITTADINI
TITOLO I RAPPORTI CIVILI
Art. 13.
La libertà personale è inviolabile.
Non è ammessa forma alcuna di detenzione, di ispezione o perquisizione personale, né qualsiasi altra restrizione della libertà personale, se non per atto motivato dell'Autorità giudiziaria e nei soli casi e modi previsti dalla legge.
Compare the Constitution of the United States of America
Preamble:
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.
ARTICLE I Section 1 All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The US Constitution
Written by the framers in 1787
Entered into force in 1789 after ratification
Protects individual liberties in Article 1 Section 9 and in the “Bill of Rights”
(first 10 amendments, added 1791)
Is entrenched: amendments only by special legislative procedure (Article V)
A constitution is normally … but in the UK
- antecedent to government
a superior set of rules, entrenched:
Takes priority over ‘ordinary’ law
Can be amended only by special procedure
The constitution is part of government
Does not consist of superior rules, is not entrenched:
Is an integral part of the law
No special parliamentary procedure
A constitution is normally … but in the UK
an act of foundation:
After a war, revolution, constitutional crisis
Written:
In a single constitutional text:
‘The Constitution’
The UK has no act of foundation:
Evolved over centuries
It is unwritten
No single constitutional text – a variety of sources
The constitution
Does the UK have a constitution?
Of course – it’s not an anarchy!
The British constitution is unwritten:
i.e. there is no single constitutional text
X “the Constitution” X
Even if many written constitutions in the world today have been shaped by the Westminster model of government
A constitution is …
the system of rules defining the composition, powers and relations of the state organs:
the legislature, the executive, the judiciary
the head of state: (UK) the monarchy
The system of rules regulating relations between the state and individuals:
civil liberties, individual rights and duties
the scope and limits of state powers in relation to the individual
What are the sources of the British constitution?
A variety of different sources:
Statute law
Common law (judicial precedent)
Constitutional conventions
Also:
EU law, ECHR law, legal treatises, the law and customs of Parliament, the Royal Prerogative
The importance of statute law
A statute is an Act of Parliament, legislation, enacted law, laws
Parliamentary sovereignty – the fundamental doctrine of the British constitution:
there are no legal limits to the power of UK Parliament to legislate
one Parliament cannot bind another
The Queen in Parliament
the legal name for the legislature (or King …)
composed of:
the monarch (King or Queen)
the House of Lords (peers: Lords Spiritual, Lords Temporal)
the House of Commons (elected Members of Parliament, MPs)
The enacting words:
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-
this formula introduces the text of an Act of Parliament
expresses the authority of the legislature to create law
Examples: statute law
Major source of the constitution – a ‘written constitution’ today?
Recent constitutional reforms:
European Communities Act 1972 – EU
Human Rights Act 1998 – ECHR
Scotland Act 1998 – devolution
Constitutional Reform Act 2005 – Supreme Court of the UK
Common law ‘constitutional statutes’
Lord Justice Laws in Thoburn v Sunderland CC (2003)
The importance of common law
The British constitution has no written charter of rights (or Bill of Rights)
The courts have traditionally defended the rights of the individual against state encroachment
Are ‘Convention rights’ (ECHR/Human Rights Act 1998) now effectively a charter of rights?
Example: common law
Judicial precedent / case law
The case of Entick v Carrington 1765
FACTS: The Home Secretary authorised a raid on the home of Mr Entick (a printer and Opposition sympathiser) with a ‘general warrant’ (mandato); papers were taken away.
CIVIL CASE: trespass to property (land and goods)
DEFENCE: general warrant, state necessity; custom and tradition
DECISION: Abuse of power: no positive law (statute or precedent) authorised the interference-
“If it is law, it will be found in our books. If it not be found there, it is not law.”
Jury awarded £300 damages to Mr Entick
LAW: Placed limits on the power of the Crown to interfere with a citizen’s person or property without lawful authority
Example: Rice v Connolly
High Court of Justice (Divisional Court) (1966)
FACTS: Police officers asked Rice questions:
Where are you going?
Where have you come from?
What’s your full name?
Mr Rice was behaving suspiciously / early morning / break-ins in the area
Mr Rice refused: “If you want me, you will have to arrest me”
The decision
Rice was arrested and charged with:
wilfully obstructing the police contrary to s. 51(3) of the Police Act 1964
Lord Parker, CJ:
‘wilful’ = not merely intentional, but without lawful excuse
“Though every citizen has a moral duty to assist the police … there is no legal duty. The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany [them], short, of course, of arrest.”
The law
The general principle of the common law is that it is not a criminal offence not to answer questions (especially if the answer would be incriminating)
But: under common law and statute, there are many exceptions:
Motorists (poss. Accident / traffic offence)
Official secrets
Investigating companies
Terrorism, drugs etc.
Many common law rights have been limited by statute
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