THE BRITISH CONSTITUTION Language and Sources

Alison Riley

This presentation is linked to Legal English and the

Common Law(2nd ed. Cedam, Padova)

By Alison Riley

Chapter 2 The Language of a Legal System

2.1 Introduction

2.2 Legislation and the Legislature

WHAT IS A CONSTITUTION?

• A legal document?• A set of rules and rights?• A fundamental law?

WHO IS AFFECTED BY A CONSTITUTION?

• The people?• The rulers and state organs?

Consider …

• The Italian Constitution• The U.S. CConstitution • Any other constitutions you have heard of:

• The CConstitution of South Africa:• Signed by Nelson Mandela in 1996 in 11 languages

• The French CConstitution (Vth Republic)• A future constitution of Padania?• A future Scottish constitution?

… and the British constitution?

Compare the Constitution of the Italian Republic

Principi fondamentali• Art. 1 • L'Italia è una Repubblica democratica,

fondata sul lavoro.• Form of state: a democratic republic

• La sovranità appartiene al popolo, che la esercita nelle forme e nei limiti della Costituzione.

• Sovereignty belongs to the people• Sovereignty is exercised within constitutional limits

Parte primaDIRITTI E DOVERI DEI CITTADINI

• TITOLO IRAPPORTI CIVILI

• Art. 13.• La libertà personale è inviolabile. • Non è ammessa forma alcuna di

detenzione, di ispezione o perquisizione personale, né qualsiasi altra restrizione della libertà personale, se non per atto motivato dell'Autorità giudiziaria e nei soli casi e modi previsti dalla legge.

Compare the Constitution of the United States of America

Preamble:• We the People of the United States, in Order to form a

more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE ISection 1All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The US Constitution

• Written by the framers in 1787

• Entered into force in 1789 after ratification

• Protects individual liberties in Article 1 Section 9 and in the “Bill of Rights”– (first 10 amendments, added 1791)

• Is entrenched: amendments only by special legislative procedure (Article V)

A constitutionis normally …

- antecedent to government

– a superior set of rules, entrenched:

• Takes priority over ‘ordinary’ law

• Can be amended only by special procedure

but in the UK

– The constitution is part of government

– Does not consist of superior rules, is not entrenched:

• Is an integral part of the law

• No special parliamentary procedure

A constitutionis normally … but in the UK

– an act of foundation:• After a war, revolution,

constitutional crisis

– Written:• In a single

constitutional text:• ‘The Constitution’

– The UK has no act of foundation:

• Evolved over centuries

– It is unwritten• No single constitutional

text – a variety of sources

• The constitution

Does the UK have a constitution?

• Of course – it’s not an anarchy!

• The British constitution is unwritten: i.e. there is no single constitutional text

X “the Constitution” X

• Even if many written constitutions written constitutions in the world today have been shaped by the Westminster model of government

A constitution is …

• the system of rules defining the composition, powers and relations of the state organs:• the legislature, the executive, the judiciary• the head of state: (UK) the monarchy

• The system of rules regulating relations between the state and individuals:• civil liberties, individual rights and duties • the scope and limits of state powers in relation to the

individual

What are the sources of the British constitution?

A variety of different sources:– Statute law – Common law (judicial precedent)– Constitutional conventions

Also: • EU law, ECHR law, legal treatises, the law and customs

of Parliament, the Royal Prerogative

The importance of statute law

• A statute is an Act of Parliament (legislation, enacted law, laws)

• Parliamentary sovereignty – the fundamental doctrine of the British constitution:– there are no legal limits to the power of UK Parliament

to legislate– one Parliament cannot bind another

The Queen in Parliament

• the legal name for the legislature (or King …)• composed of:

– the monarch (King or Queen)– the House of Lords (peers: Lords Spiritual, Lords Temporal)– the House of Commons (elected Members of Parliament, MPs)

• The enacting words:• BE IT ENACTED by the Queen's most Excellent

Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:- – this formula introduces the text of an Act of Parliament– expresses the authority of the legislature to create law

Examples: statute law

• Major source of the constitution. A ‘written constitution’ today?

• Important constitutional reforms in recent times:• European Communities Act 1972 – EU • Human Rights Act 1998 – ECHR • Scotland Act 1998 – devolution• Constitutional Reform Act 2005 – Supreme Court of the UK• European Union Act 2011

• Common law ‘constitutional statutes’ – Lord Justice Laws in Thoburn v Sunderland CC (2003)

The importance of common law

• The British constitution has no written charter of rights (or Bill of Rights)

• The courts have traditionally defended the rights of the individual against state encroachment

• Are ‘Convention rights’ (ECHR/Human Rights Act 1998) now effectively a charter of rights?

Example: common law

• Judicial precedent / case law• The case of Entick v Carrington 1765

• FACTS: The Home Secretary authorised a raid on the home of Mr Entick (a printer and Opposition sympathiser) with a ‘general warrant’ (mandato); papers were taken away.

• CIVIL CASE: trespass to property (land and goods)• DEFENCE: general warrant, state necessity; custom and tradition• DECISION: Abuse of power: no positive law (statute or precedent)

authorised the interference-– “If it is law, it will be found in our books. If it not be found there, it is not

law.”– Jury awarded £300 damages to Mr Entick

• LAW: Placed limits on the power of the Crown to interfere with a citizen’s person or property without lawful authority

Example: Rice v Connolly

• High Court of Justice (Divisional Court) (1966)– FACTS: Police officers asked Rice questions:

• Where are you going?• Where have you come from?• What’s your full name?

Mr Rice was behaving suspiciously / early morning / break-ins in the area

Mr Rice refused: “If you want me, you will have to arrest me”

The decision

• Rice was arrested and charged with:– wilfully obstructing the police contrary to s. 51(3) of

the Police Act 1964

• Lord Parker, CJ:• ‘wilful’ = not merely intentional, but without lawful excuse

• “Though every citizen has a moral duty to assist the police … there is no legal duty. The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany [them], short, of course, of arrest.”

The law

• The general principle of the common law is that it is not a criminal offence not to answer questions (especially if the answer would be incriminating)

• But: under common law and statute, there are many exceptions:– Motorists (poss. Accident / traffic offence)– Official secrets– Investigating companies– Terrorism, drugs etc.

• Many common law rights have been limited by statute

Constitutional conventions

• What are conventions of the constitution? – Unwritten ‘rules’– political practices considered binding by the actors in

the constitution– Not laws, not judicial precedents: usages

• Essential to the constitutional monarchy and democracy:

• The Queen must act on the advice of her ministers• The Prime Minister is the leader of the party with a majority

of seats in the House of Commons

Historical landmarks

1066 William I ‘The Conqueror’ - the Duke of Normandy - invaded from France. Land was recorded in the Doomsday Book

• Henry II made important legal reforms relating to application of common law

• King John: Magna Carta 1215 (and subsequent versions) limitations on Royal authority imposed by the Barons (the ‘people’)

Some significant steps in history …

• Henry VIII broke away from the Roman Catholic Church head of the Church of England

• Elizabeth I ruled with advice from her ministers but also with reference to Parliament

• Elizabeth I died without an heir. 1603 Thrones of Scotland and England were united under James I (James VI of Scotland), son of Mary Queen of Scots.

• Charles I believed in the divine right of kings. • He tried to rule without Parliament constitutional crisis

• Civil war between King and Parliament (1642-1649) – the ‘Roundheads’ (Parliament creates New Model Army)– and the ‘Cavaliers’ (loyal to the King)

The trial of Charles I

• Parliament tried the king for:– waging war against his people and against Parliament

• Westminster Hall, 20th January 1649 : – Trial commenced before 50 Members of Parliament– King refused to recognise legality of proceeding – he

claimed to be above the law– 27th January: King found guilty– Sentenced to death by execution– 30th January: King’s execution in Whitehall

The King’s last words

• “For the people I truly desire their liberty and freedom as much as anybody whatsoever;

• but I must tell you that their liberty and freedom consists in having government, those laws by which their lives and goods maybe most their own.

• It is not their having a share in the government; that is nothing appertaining to them;

• a subject and sovereign are clean different things …”

An interlude

• 1649-1653 The Commonwealth (Republic)• 1653-1659 The Protectorate:

– a ‘monarchy’, but not in name– Lord Protector - Oliver Cromwell (then his son, Richard)

– Cromwell ruled with:• A Council of 15• A Parliament of 400

• 1660 Restoration of the monarchy:– Son of Charles I, Charles II (1660-1685)– James II (Catholic rule) (1685-1688)

1689: a new constitutional settlement

Glorious revolution/English revolution• William III and Mary II were offered the throne in 1689 “to rescue the nation

and the religion”• BUT strict conditions were attached: a ‘contract’

BILL OF RIGHTS 1689 - shift in the balance of power Parliamentary sovereignty

– No army could be raised without parliamentary approval;– Taxation required parliamentary approval;– no special courts for political ends;– free elections and annual parliaments;– freedom of speech inside Parliament;– protestant monarchy guaranteed (+ Act of Settlement 1701)

Westminster – the Houses of Parliament

Looking back at a dramatic period in history

• Revolution and civil war (1642-1649)• the legal execution of a King (1649)• an interlude of republican government• (1649-1660)• Restoration of the monarchy • The glorious revolution (1689)• Between 1649 and 1659 England had four constitutions

Revolution or evolution?

• In modern times:– no single event has created the need for

comprehensive revision of the constitution

• The British constitution: – ‘has evolved in phases reflecting the political, social,

and economic experiences of many centuries’ Peter Leyland, op.cit.

• It is a flexible constitution: it is not entrenched

The United Kingdom

• Today: the United Kingdom of Great Britain and Northern Ireland (UK or GB) –

– England – Scotland – Wales – Northern Ireland (Ulster)– London – Edinburgh – Cardiff - Belfast

• Wales: annexed to England in 1536 (a separate administrative state with devolution in 1999)

• Scotland: Act of Union 1707 created a single Parliament for Great Britain at Westminster. Devolution legislation established a Scottish Parliament (2000) and executive (Scotland Act 1998)

• Ireland became part of the UK in 1801; the South separated again in 1922 - today the Republic of Ireland (Eire). But Ulster remains in the UK and has its own Assembly and executive thanks to devolution.

The United Kingdom

The United Kingdom of Great Britain and Northern Ireland:– ‘The United Kingdom’ ‘the UK’ ‘Britain’ UK / GB

The UK in Europe

• EC first enlargement: 1973– UK, Denmark and Ireland became Member

States, signing the Treaty of accession

• National legislation:– European Communities Act 1972 gave effect

to the obligations of membership

Now examine

• The Bill of Rights 1689

– See selected extracts in Legal English and the Common Law page 49

• Suggested website for historical documents: www.britannia.com

For further reading

• Legal English and the Common Law Alison Riley (Cedam, Padova, 2a ed 2012)

Chapter 2 :

The Language of a Legal SystemLaws, courts and constitutions

Suggested follow-up in Legal English and the Common Law

• Chapter 2, in particular pages 49-69– 2.1 Introduction

• Including Bill of Rights 1689

– 2.2 Legislation and the legislature• Including 2.2.3 Constitutional monarchy• Task 3

– 2.3 Consulting legislation: British constitutional reform (Scotland Act 1998)

• Tasks 4 and 5

– 2.6.1 Legislation as a source of constitutional law

Suggested reading

• The Constitution of the United Kingdom. A Contextual Analysisby Peter Leyland (Hart Publishing, Oxford, 2nd ed. 2012)

Chapter 2: The sources of the constitution

La Costituzione

di Valerio Onida (Il Mulino, Bologna, 2 ed. 2007)

Cap. 1 Guardando al passato: l’idea di Costituzione (lo strano caso della Gran Bretagna…) (da p. 7 a p.23)

Suggested websites

• www.royal.gov.uk – UK monarchy

• www.parliament.uk - UK Parliament

• http://europa.eu - European Union

• www.legislation.gov.uk - UK legislation