29 Jul 2016

Sources of law – common law

Unit 6 of W101 continues with the sources of law, in this case, the common law. In this unit, the learning outcomes are as follows:

Learning outcomes

After studying this unit you should be able to:

  • explain what is meant by the common law system in England and Wales
  • discuss the hierarchy of the court system and the operation of judicial precedent
  • explain what is meant by reversing, overruling and distinguishing
  • read a case and consider the reason for the decision
  • explain what is meant by ratio decidendi and obiter dictum.

© The Open University

The unit begins by asking what would happen in a society without law. I have to confess, my thoughts immediately ran to Syria, as I view it as a society without law. ‘Sharia law’ (in my opinion) doesn’t count as law since it depends on (a) a male oriented view detrimental to women, (b) personal interpretation and thus the strong can impose their will on the weakest, and (c) it is exceptionally cruel, (d) it does not progress, but rather regresses.

My point is that a society without law will soon descend into anarchy and chaos, and no one will be safe. No one can express their thoughts, or enjoy the freedoms we have in the UK society.

I will not write too much about the history of the common law as many websites, such as that of the Encyclopaedia Britannica (click for links) has more than adequately explained it. I will however, recommend reading the history as it is quite fascinating to see how the law as we know it, developed from tribal customs.

With regards to the common law, let’s examine some ways the criminal law was developed.

Murder was a crime created by the judiciary, which also created the conditions (legal rules) to identify both the mental intention (mens rea) and the act (actus reus) of this offence. Some of the conditions are:

  • The offence must be proven beyond a reasonable doubt.

  • The death of a human being must be caused. This has been narrowed down by the judiciary to refer to a person who has existed independently of a mother after birth. This means the child has been born and has breathed independently from its mother. You can start to see how the common law offence of murder is not as straightforward as you may have first thought. For example, if a pregnant woman was stabbed and the foetus (unborn child) died, this would be unlawful and a criminal offence but not under a charge of murder. This would be covered by a different law, such as child destruction.

  • The definition of death has been considered by the judiciary who have provided guidance. For the lay person death may be defined as a person no longer breathing and no longer having a heartbeat. However, the legal definition of death is different. There appears to be a consensus in the judiciary that death occurs when the brain dies, but this is a question of fact which needs to be considered by the court in every case.

  • Causation must also be established. This means that it must be shown that the death of the victim was caused by the defendant: that is, the person who allegedly committed the crime. That there were no other intervening acts which may have caused the victim’s death is a fact which must also be established.

© The Open University

There will be more on murder in W102 but at this point, we can see how rules around murder were developed through decisions of the judiciary.

Similarly, the civil or private law was also developed by judges.

Civil law deals with private disputes, and while the State provides courts where the disputes are heard, the heart of private dispute lie with the interested private parties. Private law covers such things as negligence, contracts, tort (wrongs), unpaid debts etc.

There are several examples where judges have developed the common law in private disputes. For example, in Donoghue v Stephenson [1932]  Lord Atkins identified ‘duty of care’ and to whom it was owed, known familiarly as ‘the neighbour principle’. Another principle is the ‘doctrine of frustration’ established in 1863 in the case of Taylor v Caldwell.

Of course, we will later learn much more about these and other developments and more about the common law.

27 Jul 2016

How statute is interpreted and applied

Unit 5 of W101 deals with how statute is interpreted and applied, and readers may want to go back to the 4 rules of interpretation prior to continuing:

Learning outcomes

After studying this unit you should be able to:

  • understand the need for statutory interpretation
  • understand the role of judges in applying the law
  • understand the rules of statutory interpretation
  • be aware of the internal and external aids to interpretation
  • understand how the judges apply the different rules of interpretation.

© The Open University

Statutes are drafted by specialist government lawyers called Parliamentary Counsels. They have to choose words with care when drafting legislation, for a number of reasons. Let’s consider some ways statutes may have some problems in interpretation:

  • While passing through Parliament, the statute may have been subject to changes, and as a result, some of the wording has changed so that original clarity was lost.
  • Due to the number of Bills passing through Parliament (greatly increased in recent years), Parliamentary scrutiny may be less than rigorous due to lack of time. Errors may slip through.
  • All languages have ‘an inbuilt imprecision’, leaving words open to ambiguity:
    • Words can have different meanings, depending on the context in which they are used.
    • The meaning of a word can change over time.
  • Unforeseen events or developments (such as in technology) may occur.
  • Statutes are drafted in a general way that cannot cover every circumstance, but might need a court to resolve a specific situation.
The relationship of the rules of interpretation

There is no hierarchy in the use of the rules of interpretation. The position has been aptly explained by Lord Reid:

They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’. (Maunsell v Olins [1975] AC 373)

© The Open University

Aside from the rules of interpretation, judges may use a number of different internal and external aids to help them.

Internal aids are found within the statute, such as explanatory notes, presumptions and rules of language.

Explanatory Notes:

“A judge may look for guidance on the meaning of the Act itself in any definitions sections, headings, side or margin notes etc. Older statutes usually have a ‘Preamble’ at the beginning which sets out Parliament’s purpose in enacting the Act.” Keep in mind that this is for guidance only, as these are not actually part of the statute.

Presumptions:

“The courts have developed certain presumptions when interpreting statutes. The courts assume that certain points are implied in the legislation unless they are rebutted by the words in the statute which indicate something to the contrary.”

Some common presumptions are:

  • Statutes do not apply retrospectively. It’s presumed that it is unfair to punish someone for  something that was not a crime when it happened, but later became a crime. It is important for people to know the legal implications of their actions. However, there are some cases where statute will apply retrospectively, but in cases like these, it will be stated in the statute itself. An example is the Adoption Act 1976 was brought into force on 1 January 1988 but replaces an earlier Act retrospectively from 1 January 1976.
  • There is a presumption that a mental element (blameworthiness or intention – the mens rea) is required for criminal offences. For crimes that do not require intention (strict liability), the statute will reflect this.
  • Statutes do not alter the common law – unless a statute expressly states that the common law has been changed it will remain as it is.

  • Statutes do not affect the Crown – unless the statute contains a clear statement to the contrary it is presumed not to apply to the Crown.

  • Statutes do not intend to deprive a person of their liberty – unless it explicitly makes provision for this form of punishment.

  • Statutes do not intend to conflict with the country’s international law obligations, and so where possible statutes should be interpreted to give effect to existing international legal obligations.

  • Statutes are ‘always speaking’ – this means that they need to be interpreted in the modern legal context rather than being fixed with the meaning that they had when they were created.

Rules of Language:

Rules of language are expressed in Latin terms, so students should familiarise themselves in recognising the expressions.

  • Ejusdem generis – this means the same type. If there is a list of specific words followed by general words then the general words are limited to the same kind of items as the specific words. So, for instance, if an Act stated that it applied to ‘dogs, cats, guinea pigs, hamsters and other animals’, then the words ‘other animals’ would be taken to mean animals of a similar type to the preceding list, so it would not include wild animals such as badgers.”
  • Noscitur a sociis – a word is known by the company it keeps. This means that the words in the statute must be looked at in context and interpreted accordingly. The other words in the same section or sections of the Act should be considered. It is wider than ejusdem generis, which only applies to general words at the end of a list of specific words.”
  • Expressio unius est exclusion alterius – this means that the mention of one thing excludes the others. Where specific words are used and not followed by any general words then the Act applies only to the specific words.”

© The Open University

“Some external aids have long been used to provide helpful guidance on the meaning of the words in a statute – these include:

  • Other Acts of Parliament on the same topic have been used when applying the mischief rule.
  • Dictionaries may be consulted to find the meaning of a word.
  • The Interpretation Act 1978 – this Act sounds more promising than it is, but it does provide a number of standard meanings which can be applied to Acts of Parliament. For instance, the word ‘land’ includes land, buildings and other structures. Section 6 is particularly well-used:

    Section 6 of the Interpretation Act 1978 provides:

    In any Act, unless the contrary intention appears, —

    • (a) words importing the masculine gender include the feminine;
    • (b) words importing the feminine gender include the masculine;
    • (c) words in the singular include the plural and words in the plural include the singular.
  • Textbooks/academic commentary on the relevant legal issue may be consulted.
  • International treaties and conventions can be given national effect and are incorporated into an Act of Parliament. The courts may consult the wording of the original treaty or convention to ensure that they give effect to its true meaning.

Other external aids have been more controversial in their use by the courts. The courts have traditionally taken a restricted approach to what can be considered when interpreting a statute. However, this attitude has been considerably relaxed with the increased use of the purposive approach and judges will now consider the following:

  • Reports – legislation is often preceded by a report highlighting issues of concern. These reports may be the work of ad hoc committees or commissions set up to consider a particular issue. Alternatively, they may be the work of one of the permanent law reform bodies such as the Law Commission. Its reports do on occasion lead to legislation. For instance, the Law Commission consultation paper Reforming Bribery (2008) formed the basis for the Bribery Act 2010 which updated the laws on bribery and corruption.
  • Pre-parliamentary materials – Green and White Papers are prepared by government departments in preparation for new legislation.
  • Hansard – contains the official daily ad verbatim report of parliamentary debates in the House of Commons and the House of Lords. It provides a record of what was said as the legislation was in the process of being approved by Parliament.”

© The Open University

23 Jul 2016

Primary and Secondary Legislation

Primary legislation is also known as enabling legislation. You may also hear such legislation being referred to as ‘parent’ Acts or ‘parent’ legislation. This is not a complex idea. It really means that Parliament has created an Act of Parliament that devolves (pass on or delegate to another) some power to a subordinate person or body, who is allowed, usually in limited circumstances, to make rules or subsidiary law (delegated or secondary legislation). The important point to note is that the delegated or secondary legislation is given powers only by the parent legislation. If the delegated or secondary legislation is within the scope of the parent or enabling Act, it are said to be intra vires (a Latin term meaning ‘within the powers’). If the delegated or secondary legislation lie outside the scope of the parent or enabling Act, it is said to be ultra vires (or ‘outside the powers’). The process of investigating whether the delegated or secondary legislation lies within or outside the scope of the primary legislation is known as judicial review.

There are two types of secondary legislation (some universities may mention 3).  Dr Stephanie Pywell, writing in the New Law Journal (2013, p. 231) explains why there are 2 and not 3 types of secondary legislation:

The nature and classification of delegated legislation features in most introductory level law courses. For many years, most students have been taught that they are three types of delegated legislation: statutory instruments (SI), byelaws and Orders in Council. Research using Parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: statutory instruments, of which there can be considered to be five forms, and byelaws.

Forms of statutory instrument:

SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled "Definition of' Statutory Instrument'" and provides that there are two ways in which delegated legislation ("orders, rules, regulations or other subordinate legislation") may be made. If the law-making power is conferred on the Crown it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document "shall be known as a 'statutory instrument'". By definition therefore, Orders in Council are a form of SI, rather than a separate type of delegated legislation.

Additionally, the standard reference document used in the drafting of SI's (Statutory Instrument Practice: a manual for those concerned with the preparation of statutory instruments and the Parliamentary procedures relating to them [Fourth edition]) identifies at paragraph 1.5.3 another UK-wide SI called Order of Council.

So what are these 5 types of Statutory Instruments (SIs)? They are Orders in Council, Orders of Council, orders, rules, and regulations. I’ll discuss each below:

Orders in Council:

Orders in Council require the personal consent of the Queen but are issued by and with the advice of the Queen’s Privy Council. They are used when ordinary ministerial transfer of powers would not suffice. For example, an Order in Council was made to appoint Theresa May as the First Lord of the Treasury when she became Prime Minister on 19th May 2016.

Orders of Council:

Orders of Council are made by the Privy Council and have the force of law, but do not require the personal consent of the Queen. “Again these can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.”

Orders:

"Orders are usually made by government ministers, and serve a specific, closely defined purpose. They should be used for executive powers and judicial and quasi-judicial decisions. Four specific types of order – Commencement Orders, Legislative Reform Orders, Remedial Orders and Public Body Orders – are worthy of particular mention because of the important purposes that they serve." [Pywell, 2013]

Commencement Orders

Commencement Orders (COs) bring into effect one or more sections of an Act of Parliament. They are widely used because it is often the case that not all of an Act comes into force on the date on which it receives the Royal Assent. It is common for an Act to include wording such as: "The provisions of this Act come into force on such day as the Secretary of State may by order appoint". [Pywell, 2013]

Legislative Reform Orders

Legislative Reform Orders are made under the Legislative and Regulatory Reform Act 2006 (LRRA 2006) and enable ministers to effect changes to primary legislation. You may recall that these are known as “Henry VIII clauses” and are often controversial. "A minister proposing an LRO must demonstrate that the proposed legislation is needed, is proportionate, represents a fair balance of interests, does not remove any necessary protection, does not unreasonably interfere with rights and freedoms, and has no constitutional significance." [Pywell, 2013]

Remedial Orders

Remedial Orders are used to correct shortcomings in existing legislation such as when a court declares legislative provisions to be incompatible with the European Convention on Human Rights, or when the European Court of Human Rights has determined that an individual's Convention rights have been infringed. Remedial Orders can have retrospective effect and must normally be laid before Parliament before they become law. An example of a Remedial Order is the Terrorism Act 2000 (Remedial) Order 2011, which repealed the extensive stop and search powers and replace them with powers that could be only exercised in much more limited circumstances. [Pywell, 2013]

Public Bodies Orders

The Public Bodies Act 2011 permits ministers to abolish, merge or modify the constitutional and funding arrangements of public bodies.

Rules:

Rules set out procedural laws, that is, they set out how things should be done rather than what should be done. The best-known example of rules are probably the Civil Procedure Rules 1998 (SI 1998/3132) which govern the running of the civil court system.

Regulations:

"Regulations are used to make substantive law – often amendments to existing primary or secondary legislation – and are frequently technical in nature. Regulations enable the law to be maintained and kept up-to-date and students should think of them when they learn that the advantages of delegated legislation include the use of expert advice to create detailed provisions and the result in saving of Parliamentary time. " Think of building regulations. [Pywell, 2013]

All of the above are forms of statutory instruments. The other remaining type of secondary legislation is byelaws.

Byelaws

Byelaws are made under the limited law-making powers conferred on local authorities and statutory bodies. They must be authorised by a Secretary of State (byelaws can create criminal offences and therefore must be duly authorised) and can deal only with matters within the jurisdiction of the maker. They usually reflect concerns within a local area.

20 Jul 2016

Q79–Bachelor of Laws (Honours)

I thought I’d post the overall learning outcomes for this degree as stated by the OU:

Bachelor of Laws (Honours) - Learning Outcomes

Educational aims

The law degree aims to provide learners of all backgrounds and abilities with the opportunity to explore and develop their interest in the law and legal system of England and Wales. Your studies will: provide you with the opportunity to gain knowledge and understanding of the legal system of England and Wales, provide you with an opportunity to gain knowledge and understanding of the role and function of law in an increasingly globalised world, enable you to become independent learners, and to develop other associated and transferable skills and attributes, provide those who wish to continue their legal education and progress on to the vocational stage of training with the intellectual and practical skills necessary to do this effectively.

Learning outcomes

Knowledge and Understanding
  • in-depth knowledge of a substantial range of the concepts, values, rules and principles of the foundation subjects of law, and of the legal system of England and Wales
  • an understanding of legal methodology
  • an understanding of the social, political, economic, historical and ethical dimensions of law
  • an understanding of the principles and methods of legal research.
Cognitive Skills
  • apply legal principles and authority in a logical and coherent way
  • organise and assimilate legal and factual material and express a reasoned personal view about that material
  • identify the relative merits of different legal and policy arguments as articulated in case law and legal scholarship
  • present and make a reasoned choice between alternative opinions and solutions
  • explore and apply exceptions to legal rules and principles
Key Skills
  • communicate effectively and accurately (using appropriate legal terminology)
  • organise information and illustrate its relevance to the intended audience
  • appreciate the requirements of intended audiences and select an appropriate mode of presentation and style
  • appreciate and demonstrate the techniques of legal argument
  • read and discuss legal materials (whether statutes, cases or academic commentary) which are written in technical and complex language
  • comprehend and use basic numerical information
  • use basic keyboard skills and perform basic computer tasks
  • use the internet, WWW and some dedicated electronic information retrieval systems to access legal information
  • work with a group to find agreed solutions to set problems
  • negotiate the performance of (and accepting responsibility for performing) an aspect of a team task.
  • reflect critically on your own performance with the assistance of feedback
  • take steps to improve your learning and performance with the assistance of feedback
  • assess your own progress, identify issues on which assistance is needed and obtain such assistance.
Practical and/or Professional Skills
  • identify legal issues in relation to material facts (both real and hypothetical)
  • apply legal principles to resolve identified issues
  • present arguable and reasoned conclusions
  • access, comprehend, interrogate and use legal materials (both primary and secondary sources) using electronic and hard copy methods

© The Open University

18 Jul 2016

Creating legislation

Legislation starts off as a Bill. This merely means that the legislation is in draft form. Bills can be proposed by members of the House of Commons (MPs) or by members of the House of Lords. Bills can either be (a) public Bill or (b) Private members’ Bill.  A public Bill is one which affects the entire population and is introduced by a government minister. A private members’ Bill is introduced by a Lord or an MP who is not a government minister. However, if the bill goes on to become law it will affect the entire population. Private members' Bills usually come about because some current issue is important and has attracted the attention of a pressure group which then lobbies an MP for change. Examples of pressure groups are the Citizens Advice Bureau,  and “Which?”.

There are three ways in which a Private members Bill can be proposed:

  • A ballot procedure allows a maximum of 20 back-benchers to propose new legislation. However, the timeframe for Parliament to process new legislation means that there is only a small quota of legislation allowed to be introduced by back-benchers. At the beginning of each parliamentary session the 20 members who were successful in the ballot are allowed to present their proposed legislation. Each of the private members’ Bills are usually discussed on a Friday and given a provisional date for a second reading or any further stages to be undertaken. These Bills may be of a controversial nature and they tend to relate to a member or a group of members who have a connection with the subject matter. The majority of private members’ Bills are usually done through the ballot procedure.

  • Ten minute rule Bills are allowed under Standing Order No. 23. This order allows members to gain permission to introduce a Bill. The ten minute rule allows members to introduce a subject matter and a proposed change in the law. This process is usually taken up just after question time on a Tuesday. The ten minute rule was used by the MP Alex Cunningham to introduce a Bill which proposed a ban on smoking in private vehicles where there are children under the age of 18 years old present. Pressure groups such as the British Lung Foundation (BLF) have supported this proposal through their campaign against smoking in cars where children are present.

  • An MP is permitted to introduce a Bill after giving notice under what is known as Standing Order No. 57. This type of Bill cannot be presented until after all the ballot bills have been presented and they have reached the second reading stage.

[The Open University, 2014]

The Abortion Act 1967 is an example of a Private members' Bill that became law.

The Law Commission and Criminal Cases Review Commission (CCRC) may also suggest changes to the law.

Stages of a Bill

The stages that a Bill that has to go through before it becomes law is fully described here.

 w101_block2_u4_fig005.eps

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© The Open University

14 Jul 2016

The Parliament Acts of 1911 and 1949

Up until the first decade of the 20th century, the House of Lords had the power to veto any legislation coming through the House of Commons. In 1909 the House of Lords refused to pass the "People's budget" of David Lloyd-George. Subsequently, in 1911 the Parliament Act (1911) was passed, plus restricting the House of Lords from vetoing any Act of Parliament – with the exception of one to extend the lifetime of Parliament – and also reduced the lifetime of Parliament from 7 years to 5 years (meaning that a general election should be held every five years). The Parliament Act 1911 gave the House of Lords an option to delay any Bill for up to 2 years.

The 1949 Parliament Act further reduced this period of 2 years down to 1 year. Both the 1911 and 1949 Parliament Acts work together. Since 1949, only 4 Bills have been passed using these Acts:

War Crimes Act 1991
European Parliament Elections Act 1999
Sexual Offences (Amendment) Act 2000
Hunting Act 2004

As a matter of convention, the House of Lords does not veto any Bill related to a matter mentioned in an election manifesto.

Another convention is that Parliament cannot bind any previous Parliaments. What this means in practice is that any new government that is formed may make changes or repeal any previous legislation from preceding governments thus ensuring that the legislative power of the government is not restricted in any way. You can read more about conventions of the UK Parliament here.

Bear in mind that conventions are also a source of law under the UK constitution and cannot be easily changed.

11 Jul 2016

The Westminster Parliament

The Westminster Parliament consists of two chambers (also known as ‘Houses’) called the House of Commons and the House of Lords. Having two chambers or houses is known as a bicameral parliament while having one legislative body (like the Welsh Assembly) is a unicameral parliament.

Theoretically, the Monarch is a third element of the law-making process, having to give formal approval for the proposed legislation to become law. This is done by affixing his/her signature (known as giving Royal Assent) to the legislation. In reality, no Monarch has done this since 1854 but it is actually done on behalf of the Monarch.

Theoretically also, the Monarch can withhold Assent to any legislation but this has not been done since 1707. You can read more about the role of the Monarch (currently a Queen) here.

House of Commons:

The House of Commons is considered to be the more important of the two Houses. The Members are also called Members of Parliament or MPs and are elected every 5 years in a general election. They are elected from constituencies or ‘seats’ by the people who reside in these areas, and are elected to represent the interests and concerns of the people who voted for them. They may also propose new laws, questions government ministers and generally raise interest in matters you think are important.

The House of Lords:

“Members of the House of Lords are not elected and are made up of peers, who have been appointed by the House of Lords Appointment Commission (HLAC), and life peers The HLAC is an independent body which was established by the then Prime Minister, Tony Blair, in 2000. Peers have a wide range of knowledge through experience gained during their professional careers, such as in the legal or academic professions, business, health and in various roles in public service. They utilise their occupational experience by contributing to matters which are debated in the House of Lords, such as education, health and public services. The function of the House of Lords is important as it contributes to the democratic process by scrutinising and revising proposed legislation that has been proposed by the current government, but as you will see later on in this unit their power to block legislation is curtailed by the Parliament Acts 1911 and 1949.

Members of the House of Lords do not have to be in a political office, such as being a member of a political party and, therefore, do not have to adhere to the convention of being either collectively responsible for a party policy or supporting proposed legislation. They may have a personal political persuasion and have previously held a ministerial role within a political party but this does not take away their independence as a member of the House of Lords. This places them in a position where they may either support or challenge a piece of proposed legislation by holding the government of the day to account, by questioning the MPs and undertaking formal enquiries which relate to the specific aspects of the new legislation. However, although members of the House of Lords may delay proposed legislation and bring the matter to the attention of the media and general public, they cannot defeat a piece of legislation. The reasoning behind this position, which is outlined below, is that members of the House of Lords are not democratically elected to this chamber. Whether a piece of legislation succeeds should be according to the will of the people, which is represented in the House of Commons and not by the members of the House of Lords. The bicameral structure of Parliament – the House of Commons and the House of Lords – produces a checks and balance system whereby power is not held by one body: the principle is that there should be transparency during the debate of any proposed legislation.”

[The Open University, 2014]

Next: The Parliament Acts of 1911 and 1949.

10 Jul 2016

Sources of Law–Legislation

Unit 4 of W101 focuses on legislation as a source of law. It focuses on the idea of democracy, how laws are made by Parliament, and devolution.

Learning outcomes

After studying this unit you should be able to:

  • explain the roles played by various individuals and bodies who may instigate legislative proposals
  • discuss the legislative process in the Westminster Parliament
  • distinguish between primary and secondary legislation
  • explain the structure of a piece of legislation and discuss its application in context
  • explain what is meant by devolution and explain how devolution has evolved in Wales.

[The Open University, 2014]

There are three main sources of law in the UK. These are: legislation, common law, and European law arising out of the EU. Note: this has not changed with the Brexit vote. It is still in effect.

w101_unit4_fig001.eps

© The Open University, 2014

The above figure gives details on how each of the sources are further sub-divided, so the various sources are more readily understood. However, there is a hierarchy of importance, and the OU advises:

“Given the hierarchical application of the three main sources of law, you need to be able to discuss the legal rules that apply in different situations. When dealing with a problem or essay question, you may need to consider whether the matter is controlled by EU law, by UK legislation or is governed by a previous decision of a court in England and Wales. Dealing with these sources of law and saying which source will prevail is important.”

[The Open University, 2014]

The hierarchy is as follows:

w101_unit4_fig002.eps

© The Open University, 2014

Democracy:

What is democracy? In theory, it is about the laws reflecting the values and views of the society in which you live, and that you are allowed a say in how you are governed. In the UK, this comes in several forms, one of which is the electoral process in which you get to choose who represents you in Parliament. It is a government by the people. You may have heard the phrase “a government of the people, by the people, for the people”. It was part of Abraham Lincoln’s Gettysburg Address.

The beginning of democracy is universally acknowledged as starting with the Magna Carta in 1215.

9 Jul 2016

Constitutional Principles

“The constitutional statutes, conventions and prerogative powers that make up the UK’s uncodified constitution would not function as effectively as they do without three fundamental principles:

  • the rule of law
  • parliamentary sovereignty
  • separation of powers.

These principles structure, strengthen and guide the legal and political aspects of a society.”

[The Open University, 2014]

The Rule of Law:

At level 1, I have already dealt comprehensively with The Rule of Law. We will meet this principle time and time again, so it is better to understand the basics of it now.

Separation of Powers:

Two philosophers contributed greatly to the theory of separation of powers; Montesquieu (1689–1755) who was French, and John Locke (1632–1704) who was English.

Montesquieu’s view was that:

“the administrative powers in France could be split into three: the executive, the legislature and the judiciary. The sovereign (monarch) stood alongside the administrative powers. The three powers would work and function separately from each other but still be linked in order to check and balance each other’s influences.”

[The Open University, 2014]

Locke had a slightly different view.

“He conceived of the legislative and executive as two different branches, as the law-making (legislative) and the law-executing power (executive). The judiciary was not seen as a source of power as its function was to interpret the existing law. According to Locke, it therefore did not need to be separated from the other two powers of legislature and executive.”

[The Open University, 2014]

In the UK, separation of powers means that the exercise of power is separated into three branches:

  • Legislature – law making; refers to Parliament as the supreme (sovereign) law-making body.
  • Executive – refers to all institutions of the state that apply the law. It includes the civil service, the police forces, and all the local authorities. The executive also relates to the Prime Minister, the Cabinet and other ministers.
  • Judiciary – comprises of the courts, judges, magistrates and other personnel. Judicial officers have independence to prevent political interference, or any other type.

Previously, prior to the Constitutional Reform Act 2005 (“CRA”) which created the Supreme Court, the legislative and judicial branches of government were linked by the House of Lords. Remember that the House of Lords is the upper chamber of the legislative branch, but also 12 members made up the Judicial Committee of the House of Lords which was the highest court in the UK. This was considered a conflict and the CRA resolve this conflict by separating them through creation of the Supreme Court, which is now the highest court in the UK.

Parliamentary sovereignty:

“Parliamentary sovereignty is a key principle for the constitutional framework of the UK and unique to a common law system.

“A constitution provides the highest authority for a state. For example, the German constitution is a codified text which presents the sovereign authority of law in its interpretation by the constitutional court. The UK lacks this codified construct. There is no written and codified constitution that can be seen as embodying the sovereign authority of the law.

“The UK does, however, have a supreme law-making body: the Westminster Parliament. It is the highest law-making authority in the UK. The Westminster Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

“Parliamentary sovereignty is one of the essential pillars of the UK’s constitutional framework. However, this important principle is not enshrined in a constitutional statute. This is because the Westminster Parliament can make and unmake any law, so any statute regulating parliamentary sovereignty would be of limited effect.

“Constitutional statutes or conventions do not uphold parliament’s sovereignty. Constitutional statutes are the result of this principle. The courts and judiciary are the essential element of the UK’s constitution which secure parliamentary sovereignty. Hilaire Barnett summarises this in one brief paragraph:

Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

(Barnett, 2013, p. 112)

“Westminster Parliament, and therefore the legislature as a branch, is the most powerful institution in the constitutional framework. However, even Parliament can be held accountable for its actions. The Westminster Parliament is accountable to the electorate. The ultimate sovereign is the people as the electorate. The members of the Westminster Parliament are held responsible by citizens who vote in elections. The Westminster Parliament is given its authority and sovereignty by the citizens electing its members.”

[The Open University, 2014]

More on Parliamentary sovereignty later.

UK Constitution–Sources: Constitutional Conventions and Royal Prerogative

Moving on, we will look at Constitutional Conventions and Royal Prerogative.

Constitutional Conventions:
Constitutional conventions are an unwritten part part of the UK constitution. Nevertheless, they are important. Different theorists have put forward different definitions and theories as to what these conventions are and why they exist. Dicey, a legal philosopher, had this to say:
"understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power … are not in reality law at all since they are not enforced by the courts.
(Dicey cited in Barnett, 2011, p. 34)

This lack of enforcement by the courts comes in for a lot of criticism. Breaches may have other consequences such as civil unrest, or a political party failing at the polls.

Some known conventions are:

  • The Prime Minister must be a member of the House of Commons
  • Ministers are collectively responsible because of membership in the Cabinet. Collective responsibility means that ministers are expected to vote in favour of government decisions and to present a stable, functioning and united government. Failure to do so may mean resignation or removal.
  • Ministers are individually responsible for their ministries. A minister can be forced to resign or removed for failures within their department, even if he is not personally involved. The final responsibility lies with him.

Conventions like these cannot be enforced in a court. The pressure to force resignation is political pressure. The Prime Minister can demand a resignation but it is still given voluntarily.

"The breach of a constitutional convention does not lead to legal redress but will lead to accusations of unconstitutional conduct."

[The Open University, 2014]

Royal Prerogative:

Royal prerogative powers are derived from those that were once exercised by the Monarch. With the rise in power of the Westminster Parliament, and the reduction of powers of the Monarch, these powers are now exercised by the government. However, they are still considered to be royal powers which remain with the Monarch of the day.

“Originally prerogative powers would have been exercised by the reigning monarch. However, over time a distinction has emerged between the monarch acting on his or her own capacity, and the powers possessed by the Monarch as head of state. In modern times, Government Ministers exercise the majority of the prerogative powers either in their own right or through the advice they provide to the Queen which she is bound constitutionally to follow. There have been calls to reform prerogative powers, chiefly because they are exercised without any parliamentary authority.”

(House of Commons, Briefing Paper SN/PC/03861, 2009, p. 1)

“The Westminster Parliament has no influence on the exercise of these powers but is able to influence political developments in the UK (domestic affairs) and abroad (foreign affairs).

Examples already mentioned of royal prerogative powers relating to foreign affairs are the power to declare war and to declare peace and the power to become part of treaties. At a national level the powers are used to pardon offenders, appoint ministers or summon Parliament.”

[The Open University, 2014]

Next: Constitutional Principles.

8 Jul 2016

Exam Results

Yippee. Another pass with very good marks. Results released yesterday.

Moving on to W202: Contracts and Tort come October 1st.

6 Jul 2016

UK Constitution–Sources: constitutional statutes

From the previous post, we saw that the UK Constitution has 4 main elements: constitutional statutes, constitutional conventions, royal prerogatives and constitutional principles. The first three are the sources of the constitution. This is what we will discuss now; constitutional principles will be discussed later on.

Constitutional Statutes:

As mentioned before, constitutional statutes represent the written part of the UK constitution. These are Acts of Westminster Parliament, which is the supreme law-making body of the UK (there is more to discuss on this later, however please make a note of this now). It is important to note that not every statute (Act of Parliament) is a constitutional statute; indeed it is very rare for an Act to be considered a constitutional statute. The difference between a constitutional statute in an ordinary statute has been clarified in the decision of: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151.

Interestingly enough, in this case it was an argument over usage of metric weighting system and imperial weighting system that brought about the differentiation of ordinary and constitutional statutes. (As a side point, this case also established that EU law took precedence over national law due to the European Communities Act 1972you may want to remember this in future).

Lord Justice Laws established that there was ‘a hierarchy of Acts of Parliament’and gave the following explanation:

‘In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights’.

He also made a further observation: that ordinary statutes may be repealed by implication, but a constitutional statute “may not and neither can it be impliedly repealed or subjected to significant amendment by recourse to parliamentary statements during its enactment…”

Constitutional Statutes

© The Open University

Since Parliament is the supreme lawmaking body, it has the power to repeal or amend ordinary Acts of Parliament; however, constitutional statutes are much harder to amend or repeal as they have wider and significant impact on the constitution itself. Such is the significance that the government of the day tend to seek the support/opinion of the public before making changes to a constitutional statute, for example, by holding referendums. The UK held a referendum before joining the European Community (and recently held another on the choice of exiting the EU) because of the significance of the changes which would happen, not only to the society but also to the constitution.

Henry VIII clause:

Acts of Parliament sometimes contain a 'Henry VIII clause' which allows a nominated member of the executive to make amendments to legislation without the time and expense of making such a change in Parliament. In other words, a ‘Henry VIII clause’ allows secondary legislation to amend primary legislation. These clauses are often a cause of controversy.

An example would be The Immigration Act 2014, which allows the Secretary of State for the Home Department (SSHD) to make amendments under section 74.

Next: Constitutional Conventions

4 Jul 2016

The UK Constitution

A constitution that is unwritten is known as an uncodified constitution.

The UK Constitution is describe by Barnett (2013, p. 3) as: monarchical, supreme, largely unwritten and flexible. Each of these are described below.

Monarchical:

The Queen (Monarch) is the Head of State and still has political and legal influence on the State. Most of the Monarch’s powers are actually exercised by the Government on behalf of the Queen, and later on we will look at what powers the Queen still retains.

The Queen. Photo linked from: http://pamelageller.com

Supreme:

The UK has a unitary constitution, meaning that there is one central government that exercises power and all other administrative divisions can only exercise powers that the central government chooses to devolve, and which the central government can vary at any time. In the UK, the power is vested in Westminster Parliament, which in turn passed legislation creating ‘subordinate’ legislatures: the National Assembly of Wales, the Scottish Parliament, and the Northern Ireland Assembly.

Of passing interest, the federal constitution divides power between a federal government and individual states which may have their own constitutions while there is also a national constitution. A notable example is the United States of America.

Largely unwritten:

“The UK’s constitution has developed over a number of centuries. It is generally recognised as having begun to develop in 1215 with the Magna Carta. Other key events that have followed include the Union with Wales (1535–1542), the Bill of Rights 1689, the Union with Scotland in 1706, the Reform Act 1928, the European Communities Act 1972, and the Human Rights Act 1998. You will explore the most recent of these later in the module. They are written documents but they are also supplemented by a number of unwritten conventions. The constitution of the UK has been developed on a piecemeal basis and is not contained in one complete document. Indeed, the constitution of the UK is uncodified.”

[The Open University, 2014]

The UK Constitution is considered to be ‘largely unwritten’ as some key aspects of it are not to be found in any Act of Parliament. The main elements of the Constitution are as follows:

Constitutional Statutes:

Constitutional Statutes are considered to be written documents that changed the constitution in a significant way, such as the European Communities Act 1972, and the Human Rights Act 1998. Tehy are also viewed as legal sources of the Constitution.

Constitutional conventions:

These are unwritten and seen as equivalent to constitutional statutes. They are the ‘traditional expectations created by informal rules of behaviour and rules of administration developed over centuries’. While they are not written, and therefore cannot be enforced through the courts, they are still seen to be the non-legal source of the UK constitution. It should be noted that they are respected and still function well.

Royal Prerogatives:

“The royal prerogative has its roots in history, from a time when the monarch had absolute power. Over time this diminished as Parliament gained more powers. Nowadays the royal prerogative is mostly used by the government. This power relates to:

  • the legislature – the summoning and dissolution of parliament; the granting of royal assent to Bills
  • the judicial system – pardoning of convicted offenders or remitting or reducing sentences
  • foreign affairs – the making of treaties; the declaration of war
  • armed forces – the sovereign is commander-in-chief of the armed forces
  • appointments and honours – appointment of ministers; creation of peers and conferring of honours and decorations
  • in times of emergency – requisitioning of ships (where compensation would be payable).

While the prerogative power is now generally exercised by the government, there are some prerogative powers (recognised under common law) which remain with the Crown. These are as follows:

  • The appointment of a Prime Minister. The sovereign must appoint the person who is in the best position to receive the support of the majority in the House of Commons. This is generally the leader of the political party with the majority of members in the House of Commons.
  • The giving of royal assent to legislation. In 1708 Queen Anne became the last monarch to refuse royal assent to a Bill passed by Parliament. Additionally, no monarchs since the sixteenth century have signed Bills themselves and Queen Victoria was the last to give royal assent in person in 1854.

The royal prerogative is seen as a legal source of the UK’s constitution as it forms part of common law.”

[The Open University, 2014]

Constitutional Principles:

The three constitutional principles are: the rule of law, parliamentary sovereignty, and the separation of powers, all of which underpin the UK’s constitutional framework.

Flexible:

“Generally, there are strict and precise rules as to how a national parliament can alter or reform the constitutional framework. Most states have a written document and look to it as the highest source of law, rights and power. For example, the constitution of the United States is regarded as the supreme law of the United States. To amend any aspect of the written document setting out the constitutional framework would require a compelling reason. There are normally rules in place to make the process of amendment slow. These allow time for reflection and recognise the important impact that any change may have. This creates an impression that the constitution is very static.

The UK’s constitution, however, is different. It is regarded as stable but also flexible as it is mainly unwritten. However, most of the constitutional statutes would be difficult to amend and it would be Parliament that decide when and how to do so.

Conventions, however, cannot be amended through a legislative process. They are mainly unwritten and change gradually over time as change itself becomes accepted. Conventions evolve over time. For example, if the electorate were to decide that the Prime Minister no longer has to be a member of the main political party in the House of Commons (a current constitutional convention), this constitutional convention would change because of the acceptance by the electorate of that fact. In this way the UK’s constitution can adapt to changes in society and evolve in response to those changes.”

[The Open University, 2014]

Constitutions – what makes a constitution?

In the previous post, I presented an introduction to constitutions. In that previous post, readers were asked to look at the definitions of what a constitution is and think of some of the characteristics it may have.

Anthony King, Prof of Government at University of Essex, has written a book The British Constitution. Prof King says:

“‘Constitution’ refers:

to the set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” (King, 2009, pp. 3–4).

Note carefully that Prof King does NOT say that a constitution has to be written, a point I had asked readers to note in my previous post. So when the Encyclopaedia Britannica refers to ‘the fundamental written document…’ it is incorrect. While most countries may have a written constitution, it is not an absolute must, as the UK’s Constitution clearly shows; it is a mixture of Constitutional statutes, Constitutional conventions, Royal prerogative and Constitutional principles (eg the rule of law). More on this later. Countries that do not have completely written constitutions include the United Kingdom, Canada, Israel, New Zealand, and Saudi Arabia.

Prof King also points out:

“In the first place, a definition of this kind is wholly neutral in moral and political terms. It says nothing whatsoever about whether a given country’s constitution is good or bad or about whether it is worth commending or condemning. A country’s constitution is simply the set of rules and common understandings that currently exists. In this sense, almost every country has a constitution, and to say that a given country has a constitution is to say nothing else about that country save possibly that it is not a so-called ‘failed state’, a state whose governmental structures have effectively collapsed. Germany under the Nazis and the Soviet Union under the Communists both had constitutions on this definition, however abhorrent they may have been. Germany, Russia and Britain today also have constitutions in this sense, and whether their constitutions are admirable or otherwise is, in this context, neither here nor there.” (King, 2009, pp. 3–4).

So, Prof King describes the definition of a constitution, the set of rules and understandings that currently exists, as a neutral definition. It does not go any further to describe whether a constitution is good or bad.

“Even given this definition, there may, of course, be some debate about which are a country’s ‘most important’ rules and common understandings. There is bound to be, on the one hand, a core constitution, the changing of which everyone would agree was a real constitutional change, and, on the other hand, elements of a country’s political practices that might or might not be regarded as strictly constitutional and the changing of which might or might not therefore be regarded as constitutional change. The rule in the United Kingdom that free and fair elections should be held every few years is undoubtedly one of the country’s most important rules, as is the rule that the leader of the majority party in the House of Commons normally becomes prime minister. At the other end of the scale of importance are, for instance, the rule requiring the Speaker of the House of Commons to wear a black gown when presiding over the House and the rule (or is it merely a custom?) requiring someone called the Gentleman Usher of the Black Rod to knock at the door of the Commons chamber before summoning members of the Commons to hear the Queen’s Speech in the Lords chamber.” (King, 2009, pp. 3–4).

In the above, Prof King points out that a constitution has a ‘hierarchy’ of rules, with some having more importance than others. He cites the rules regarding regular, free and fair elections as one of the more important, or ‘core’, rules.

Next, the UK Constitution.