Common Law – Why is it fundamental to the constitution?

JudgesCommon Law is an important source of the UK constitution. Common Law is otherwise known as ‘Judge made law’, it is the body of law that is made up from the precedents of previous court cases that have gone before. As a result of this, Common Law is evolutionary, it changes and develops changes through time as society evolves.

Common Law is inferior to Statute Law. This is because in Britain there is a doctrine of parliamentary sovereignty, meaning that no body can overrule Parliament. This means that if Parliament pass a law (called a Statute) it takes precedence over any Common Law rulings. However, a system of Statute Law cannot function adequately without Common Law. This is because it would be impossible for Parliament to be able to foresee every eventuality and every implication of any law that they pass. Given this, it is therefore essential that Common Law ‘fills the gaps’ in Statute Law.

Murder is an example of a Common Law offence. Murder was seen as a crime long before the existence of Parliament and therefore has existed in Common Law since at least Anglo-Saxon Britain. However, there have been some occasions when Parliament has stepped in to ensure certain issues have more clarity. An example of this is through the enactment of the Homicide Act (1957). This law largely abolished the doctrine of ‘constructive malice’, whereby someone could be charged with murder if they killed someone unintentionally whilst committing another crime. The Homicide Act also introduced a defence of ‘dismissed responsibility’, whereby the judgement of the person committing the crime was impaired by a circumstance beyond their control, for example a mental health issue.

The amendment was largely in reaction to a number of high profile cases, including that of Derek Bentley in 1953 and Ruth Ellis in 1955, both of whom had subsequently been hanged.

Derek Bentkey

Derek Bentley was convicted of murder in 1953 after the death of a police officer named PC Miles. Bentley and his co-defendant, Christopher Craig, had been attempting to burgle a warehouse when PC Miles intervened. Craig shot Miles dead, but was not executed as he was a juvenile. Bentley, however, was hanged after the jury heard he had shouted ‘let him have it’ whilst Craig wrestled with Miles. The prosecution interpreted this as an incitement to murder and the 19 year-old was hanged, calling much public outrage.

 

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Ruth Ellis was a model. She was the last woman to be hanged in Britain. She was convicted of murdering her partner David Blakeley. She was in an abusive relationship and had a daughter that Blakely would not acknowledge. There was no doubt Ellis intended to kill Blakeley, however, it is clear she did so under some duress.

Common Law is built up from a huge range and number of judicial precedents. Sometimes, Common Law can become hazy and sometimes does not keep up with the developing attitudes of society. In this case, it is up to Parliament to legislate to clear up the matter.

image_miniA good example of this is found in the case of Wilkinson vs. Kitzinger. Sue Wilkinson and Celia Kitzinger married in Canada in 2003 after being a couple for 13 years. Wilkinson still lived and worked in England. In 2004 the UK Civil Partnership Act came into force, allowing same-sex civil partners similar legal right to married heterosexual couples. However, as Wilkinson and Kitzinger were already married, they wished their marriage to be recognised in the UK. The case went to the High Court in 2006. The High Court announced that the Wilkinson and Kitzinger’s relationship would be treated as a civil partnership, not a marriage. The court said that by “longstanding definition and acceptance” marriage was between a man and a woman.

Clegg and Cammy

The Marriage (Same Sex Couples) Act was a major piece of social legislation passed under the Coalition Government.

This led, in part, to a societal discussion over the merits of Same-Sex Marriage and the antiquated way in which common law was being applied. In 2013 Parliament cleared up the issue by passing the Marriage (Same Sex Couples) Act which equalised heterosexual and homosexual marriage.

There are undoubtedly problems with Common Law. It relies on the judicial decisions of judges, who are not elected and therefore not accountable to the public. A concern is also often raised that judges come from a predominantly conservative background, with many being Oxbridge educated, which therefore imbues a conservative political bias in judicial decisions. However, it remains an essential part of the effective operation of the UK constitution and the upholding of the Rule of Law.

 

 

 

 

 

 

 

Why are conventions still an important part of the UK constitution?

Conventions are customs, that although not legally binding, are usually followed. Conventions play a major role in the UK constitution, but are often changing and developing. Sometimes, new conventions emerge whilst others die away, or are codified by the passing of a Statute Law.

There are a number of conventions that are essential to the functioning of the UK political system and serve very important purposes. A good example of this that the supremacy of  the House of Commons is largely ensured via two important conventions:

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The Supremacy of the House of Commons is largely outlined by two important conventions.

The House of Lords does not vote against Money Bills – This is an extremely important principle. It guarantees that decisions over the spending of taxpayers money are taken by the elected chamber.

The House of Lords does not vote against anything in the Government’s Manifesto (Salisbury Convention) – This ensures that the wishes of the electorate, reflected in their choosing of a Government, are upheld by Parliament.

(More can be found out about the Salisbury Convention here).

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How did Gerald Ford become the only unelected President in US History?

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Trump won the Presidency despite trailing Hillary Clinton by 2.8 Million in the Popular Vote.

It is not unusual for a President to win the election whilst not winning the votes of the majority of Americans. Five times in US History a candidate has won the electoral college vote without winning the popular vote, the latest being in November 2016 when Donald Trump won the Presidency despite securing 2.8 million votes less than Hillary Clinton.

However, it is unusual for someone to become President without winning an election at all. However, this is exactly what happened on August 9th 1974 when Gerald Ford became the 38th President of the United States without having ever contested a Presidential Election.

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On the 9th August 1974, Gerald Ford became the 38th President of the United State despite never having contested a Presidential Election.

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Why is Statute Law the most important source of the UK Constitution?

Due to its uncodified nature, the UK constitution is made up of numerous sources. Some, like Works of Authority, are of lesser importance. However, Statute Law stands out as the most important source of the constitution. The reason for this is that Parliament is sovereign. Therefore, any law passed by Parliament (a Statute Law) takes precedence over all other sources of the constitution.

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What are the advantages of having a constitutional monarchy in the UK?

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The monarchy in Britain is an institution that divides opinion. To some people it is an antiquated institution that has no place in a twenty-first century democratic system. To others it is an essential symbol of continuity that provides a connection to Britain’s illustrious past. To some, it may simply be a beneficial tourist attraction, pulling in people from around the world to spend their money in Britain.

The role of the monarch can be broadly split into two: Head of Nation and Head of State.

Head of State

Every country has a Head of State. This is the person that is the highest representative of the state, both nationally and internationally. In some countries, like the USA, the Head of State is also the Head of Government. However, in the UK, the Prime Minister is the Head of Government. So what roles does the Queen perform as Britain’s Head of State?

– The Queen represents Britain on an international stage.

For example, the Queen is Head of the Commonwealth and attends Commonwealth meetings.

Queen and Trump

Whether the Queen wanted to meet President Trump is another matter – but she knew it was her constitutional duty.

– The Queen greets foreign Heads of State.

For example, in July 2018 the Queen greeted Donald Trump at Windsor during his visit to Britain.

– The Queen appoints the Prime Minister and meets regularly with them and can ‘advise, guide and warn’ the Prime Minister.

– The Queen officially opens Parliament and gives the ‘Queen’s Speech’. This speech outlines the Government’s legislative agenda for the year.

Beyond this, the Queen’s traditional governing powers, known as the Royal Prerogative, have passed to the Prime Minister. Examples of these powers include: controlling the Armed Forces and signing international treaties. The powers that the Queen has passed to the Prime Minister make the Prime Minister incredibly powerful. The ability to launch military action without parliamentary approval, as Theresa May did in Syria in 2018, is one such example.

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John Major is the only former PM to currently be made a Knight of the Garter.

There are some traditional powers that the Queen reserves for herself. All of these powers are non-governmental. These include the right to confer honours. The highest honour the Queen can award is to make someone a Knight of the Garter or to create a Peerage. The Knights of the Garter have existed since 1348 and at any time there are a maximum of 24 members. The former Conservative Prime Minister Prime Minister, John Major, was made a Knight of the Garter in 2005. The Queen can also create peerages. This often happens to account for new members of the Royal Family. For example, Prince Harry was made the Duke of Sussex upon marrying Meghan Markle and she therefore become the Duchess of Sussex. The last non-royal recipient of a new hereditary peerage was former Prime Minister Harold MacMillian who was made Earl Stockton in 1984.

Head of Nation

The role of ‘Head of Nation’ is more informal and is shaped by the individual monarch. The role of Head of Nation may include things such as:

– Doing charitable works. The Queen is Patron of over 500 charities.

– Recognising the contribution of ordinary citizens to national life. For example, the Queen regularly hosts Garden Parties which she invites citizens to.

– Representing the nation at sporting and cultural events. For example, the Queen officially opened the 2012 Olympics and presented the World Cup to England Captain Bobby Moore in 1966.

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The Queen preseting the Jules Rimet trophy to Bobby Moore is an iconic cultural image.

Arguably, the Queen’s role as Head of Nation is now even more important than her role as Head of State.

Britain has a constitutional monarchy, this means that the role of the monarch is predominantly ceremonial. This is opposed to absolutist monarchies, like Saudi Arabia, where the monarch still takes the central role in the political leadership of the country.

To many, like members of the pressure group Republic, the fact that the British monarchy is ceremonial makes it even more essential that the monarchy is dissolved – as it is perceived to serve no useful purpose.

 

However, there are some potential positive aspects of Britain’s constitutional monarchy:

  • It allows the Head of State to focus on governing

In Britain, the Monarch does a number of ceremonial roles that relieve pressure on the Head of Government. Examples of this are meeting foreign Heads of State, foreign dignitaries and distributing awards. In countries with a Presidential System, like France and the USA, the President has to devote much of their time to these events, thereby reducing the amount of time in which they can actually focus on government.

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Winston Churchill was the Queen’s first Prime Minister

  • It allows for sense of continuity

Prime Ministers come and go. However, the monarch can remain in place for decades. Since becoming monarch in 1952 Elizabeth II has asked 13 people to form a Government and become Prime Minister. The person who held the position when she became monarch was Winston Churchill.

 

  • It allows for a distinct national identity

The monarchy is a unique institution with a rich history. This helps to create a distinct British identity which is invaluable for tourism. It is estimated that the Royal Family are worth as much as £500 Million per year to the British tourism industry.

  • It creates an independent arbitrator in the political process
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The Queen may have been forced to intervene in 1974 had Ted Heath not decided to resign.

If required, it is the Monarch’s constitutional role to act as an independent arbitrator to solve political disputes. This might be particularly important in the event of a Hung Parliament where no individual party can clearly form a Government. Famously this happened in March 1974. The result of the election left it unclear who would form the next Government. With Labour on 301 Seats and the Conservatives on 297, neither had a majority. The Conservatives were in discussions with the Liberals about forming a coalition and whilst these discussions went on the Conservative Leader Edward Heath remained as Prime Minister. As the talks continued it became increasingly clear that an agreement would not be reached between the two parties. If Heath had refused to resign, the Queen’s staff had already made preparations for her to intervene.

In any situation, both Parliament and the Monarch would wish for it to be solved politically, thereby avoiding the necessity of the Queen involving herself in political issues. However, if it were deemed to be absolutely necessary, the presence of an independent arbitrator is potentially very valuable.

There are equally of course a number of arguments against having a constitutional monarchy. It can be argued that it perpetuates a class-based system of society that is not in tune with a modern liberal democracy. Another criticism is that it is largely dependent on the characteristics of one individual, unlike a bad Prime Minister, a poor monarch cannot be removed. Some people are concerned that Prince Charles will not be an effective monarch, with some questioning his ability to remain neutral on political issues. However, constitutional monarchy remains a key principle of the UK constitution and an understanding of how it works is desirable.

What is Parliamentary Sovereignty and does it truly exist?

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A.V Dicey said Parliamentary Sovereignty meant Parliament could “make or unmake any law”

Along with the Rule of Law, AV Dicey called Parliamentary Sovereignty one of the ‘Twin Pillars of the the UK Constitution’. Parliamentary Sovereignty is the most important principle of the UK constitution – although its [meaning] has been increasingly questioned in recent years.

Sovereignty means ultimate power. Parliamentary Sovereignty means that in the United Kingdom’s representative political system, Parliament has the ultimate power.

AV Dicey summed up Parliamentary Sovereignty simply by saying that Parliament could “make or unmake any law”. However, he also fully explained that there were three key facets to the principle:

1. Parliament can make laws concerning any matter

Parliament can legislate on any issue it chooses. In his book The British Constitution Anthony King said that Parliament could pass a law that banned smoking on the streets of Paris. Of course, this law would have no practical effect, but this would not stop Parliament from passing it. The fact that Parliament can make any law enforces its sovereignty. Any Statute Law passed by Parliament supersedes Common Law.

2. No Parliament can bind its successor

Each individual Parliament is sovereign. This means that no Parliament can pass a law that could not later be repealed by a future Parliament. As part of this a principle there also exists a doctrine of ‘implied repeal’. This means that if an Act of Parliament conflicts with an earlier act, the later Act automatically takes precedence, in effect repealing the earlier Act.

Brexit

Brexit is the best example of a Parliament not being able to bind its successors.

The best current example of Parliament not being able to bind its successor can be seen through Brexit. In 1972 Parliament passed the European Communities Act. This act saw Britain join the EEC (now EU). However, in June 2018 the EU (Withdrawal) Act was passed by Parliament following the result of the EU Referendum. This is the piece of law that will formally see Britain leave the European Union. This clearly shows that Parliament can repeal any Act by its predecessors.

3.  A valid Act of Parliament cannot be overturned by any other body 

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The US Supreme Court is considerably more powerful than their UK counterparts.

As a result of Parliament’s Sovereignty, no Act or decision it takes can be overturned by another body, such as a court. This is fundamentally different from the United States. As the US has as Codified Constitution all actions that Congress takes must be in line with the Constitution. The courts can strike-down any action which is not in line with the Constitution. As Britain has no codified constitution, the courts cannot do this. Although the courts may advise Parliament on an issue, there is no mechanism for the striking down of a Parliamentary action.

These are the principles that underpin Parliamentary Sovereignty. These principles are all examples of legal sovereignty, the situation that exists in established law. However, this is different from political sovereignty, the situation that exists in practice.

There are a number of factors that potentially challenge the traditional principle of Parliamentary Sovereignty in the UK:

External Law – Britain has a number of external commitments that affect the ability of Parliament to remain sovereign. For example, Britain is a member of NATO. As part of this, Britain has made a guarantee to go to war to protect any other NATO member who is attacked.

The most prominent way that parliamentary sovereignty has been argued to be externally limited is because of Britain’s membership of the EU. When Britain joined the EU (then EEC) in 1972 they agreed to accept the precedence of EU Law over UK Law. This was later confirmed by the Factortame Case of 1990.

As Britain is due to leave the EU in March 2019 through the European (Withdrawal) Act, it is clear that legal sovereignty has never been lost. However, the reality is that as a member of the EU Parliament is not truly sovereign.

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Devolution – It has been argued that Devolution has reduced Parliamentary Sovereignty. Although Devolution could be legally reversed it is now a deeply engrained part of the British political system. Since the first acts of devolution in 1998 the number of devolved powers has continued to grow. Technically the UK Parliament could pass legislation on ‘devolved powers’. For example, the UK Parliament could pass a law that said that Scottish students should pay the same tuition fees as English students. However, in reality, they would never do this as it would create a constitutional crisis – clearly showing Parliament’s sovereignty has been reduced.

Growing Judicial Activism – The British judiciary is seen to be increasingly independent

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Gina Miller bought a case against the Government to ensure only Parliament could trigger Article 50.

and, with this independence, more of an authority. The passing of the Constitutional Reform Act (2005) saw both the creation of the UK Supreme Court and the creation of the Judicial Appointments Commission. The UK Supreme Court’s role in Judicial Review has grown and a number of decisions against the Executive have occurred. One example is Evans v. Attorney-General in which the Supreme Court ruled that Prince Charles’ letters to Government Ministers should be released under the Freedom of Information Act (2000). However, by far the most prominent case is Miller v. Secretary of State for Exiting the European Union. In this case the Supreme Court said that it was not within the powers of the Royal Prerogative for the Government to initiate Article 50 and instead this power belonged to Parliament. This case actual reinforced Parliamentary Sovereignty but did so by accentuating the power of the Judiciary.

Elective Dictatorship – The domination of Parliament by the Executive, what Lord Hailsham called the ‘Elective Dictatorship’, might also be seen to limited Parliamentary Sovereignty. The Government usually as an in-built majority in the House of Commons and control the legislative agenda. As a result of this, they can largely push through whatever actions they believe to be necessary. Arguably, this means that sovereignty resides with the Government and not the wider Parliament.

The Bill of Rights (1689) – What did it do?

The end of the seventeenth-century saw a period of dramatic change in British Politics that laid the foundations for the liberal democratic government that is still in place today.
In 1660 Britain’s short experiment with republicanism came to an end. After the death of Oliver Cromwell his son, Richard, became Lord Protector. However, Richard Cromwell was an inept protector and was removed after less than a year. In April 1660, the English Parliament announced that Charles II was the lawful monarch of England. Constitutionally, it was as if the years since the execution of Charles I had simply not happened.
Charles II

Charles II became Monarch in 1660, 11 years after the execution of his father.

Charles II bore no children and was replaced as monarch by James II. Unlike Charles, James was an unpopular monarch. Much of his unpopularity stemmed from the fact that he was a Roman Catholic and sought to reassert the rights of other Roman Catholics in England. The reign of James was characterised by a constant struggle with Parliament, reminiscent of that of his grandfather, Charles I. In 1688, at the invitation of a number of Protestant nobles, the Dutch Prince William of Orange invaded England. Rather than fight, James II fled to the continent.
William and Mary

William and Mary ascended to the throne with far less power than their predecessors.

In place of James, William of Orange and his wife, Mary (James’ daughter), were jointly offered the throne. This guaranteed a Protestant monarchy again in England. However, William III and Mary were not to be given the same powers as previous monarchs. This event, known as the ‘Glorious Revolution’, saw the advent of ‘constitutional monarchy’ in the UK, with explicit restrictions placed on the monarch.

One of the most important pieces of legislation to limit the monarchies power was the Bill of Rights. The Bill of Rights outlined a number of rights granted to citizens of England. However, most were provisions that protected the rights of Parliament and Parliamentarians. These included:

  •  The Monarchy could not suspend laws without the consent of Parliament
  •   The Monarchy could not levy taxes without the consent of Parliament
  •   The Monarchy could not keep a standing army at a time of peace without the consent of Parliament
  •  Cruel and Unusual Punishments were not to be inflicted in England.
  •  Parliament should be a permement instituion and not merely gathered at the Monarchy’s request.
One particularly important right that was outlined in the Bill of Rights was Parliamentary Privilege. The wordking of the clause was:

” That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”

This right protects Parliamentarians from being sued or prosecuted for actions taken that are clearly done as part of their parliamentary duties.

A previous post explores Parliamentary Privilege in more detail:

Importantly, the Bill of Rights (1689) can be held in stark contrast to the US Bill of Rights of 1791. The US Bill of Rights made up the first ten amendments of the US Constitution and guaranteed the rights of all citizens and did not predominantly protect the rights of the political class.

Overall, however, it can be summarised that the Bill of Rights (1689) had three important features:

  1. It solidified the notion of constitutional monarchy in England.
  2. It re-asserted may ancient rights, such as Habeas Corpus, which dated all the way back to the Magna Carta.
  3. It formed the basis of later statements of rights that were continue to grow in England and the United Kingdom.