Category Archives: UK Constitution

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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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.

 

What is the Rule of Law and why is it an important principle of the UK Constitution?

Along with Parliamentary Sovereignty, the Victorian constitutional scholar A.V Dicey called the Rule of Law one of the ‘twin pillars of the UK constitution’. By this, he meant it was one of the things that was fundamental in making the UK constitution what it is.

The concept of the rule of law is an ancient one. It refers to a society in which bodies of law govern how society is run. It has since been fundamental to any functioning state, all of which are governed by the rule of law. However, in modern liberal democracies, like that in Britain, it has taken a more defined meaning.

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Why was Devolution in Northern Ireland so hard to achieve and is it in crisis?

Blair

With a parliamentary majority of 1979, Tony Blair was able to push through a radical constitutional reform agenda – which included devolution

Within two years of become Prime Minister in May 1997, Tony Blair had achieved his aims of devolving power across the United Kingdom:

The Scotland Act, 1998 – This created a Scottish Government and Scottish Parliament. The Scottish Parliament (often referred to as Holyrood) is elected using the Additional Member System. The Government is led by the First Minister.

The Government of Wales Act, 1998 – This created a Welsh Assembly and Welsh Executive (it is now called the Welsh Government). The Welsh Assembly is elected using the Additional Member System. The Government is led by the First Minister.

The Northern Ireland Act, 1998 – This created a Northern Irish Assembly and Northern Irish Executive. The Northern Irish Assembly (often referred to as Stormont) is elected using the Single Transferable Vote system. The Northern Irish Executive is co-led by the First Minister and Deputy First Minister in a unique ‘power-sharing’ arrangement.

Greater London Authority Act, 1999 – This created a Greater London Assembly and a directly elected London Mayor for Greater London. The Assembly is elected using the Additional Member System.

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The Salisbury Convention

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One of the most important sources of Britain’s uncodified constitution are conventions. These are unwritten agreements which are usually followed. Britain is one of only four countries across the globe with an uncodified constitution. Constitutions from countries in which they are codified are usually formed at the end of a revolutionary period. For example, America’s codified constitution of 1787 was written at the end of the revolutionary war in which America gained independence from Britain. Another example is Russia which implemented a codified constitution in 1993, after the fall of Communism. Unlike these countries, Britain has not had a revolution since the age of enlightenment, during which liberal democracy and constitutionalism became engrained in western thought. Instead, rather than being revolutionary, the UK constitution is evolutionary – more layers have been added through time, rather than undergoing a fundamental restructuring.

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