Sources of Law Summary, Conventions, Separation of Powers

Last week, we went through the various sources of constitutional law. We went through the main sources of English Law, such as:

Acts of Parliament – with constitutional significance –

The Act of Settlement 1700

The Act of Union, 1706

The Parliament Act 1911

The European Communities Act

The Royal Prerogative

Common law/Judicial Decisions

-       Entick v Carrington (1765)

-       Liversidge v Anderson (1942)

-       Common Law Protections of Rights

European sources:

The European Convention on Human Rights

The law of the European Community and Union

Details – don’t worry about the details now –

This week, we shall do two things: We shall finish up on the various sources of UK Constitutional Law, then move on to Separation of Powers.

What are conventions?

What would be your definition of a convention in the ordinary non-legal sense of the word?

It is a characteristic of constitutions that they often contain large areas which are governed by conventions rather than by strict law. Even where a country sets out to develop a written constitution, customary usages tend to evolve around the rules. This is a particular feature of the UK constitution; many of its important features are regulated by convention alone. For example, there is no common or statutory rule that there must be a prime minister. Similarly, the rule that the Queen will only exercise her very wide statutory and prerogative powers on and in accordance with the advice of ministers is found in conventions alone.

In general, conventions are significant because they represent a means of bringing about developments in the constitution without the need for a formal repeal of amendment of the law. The distinction between strict law and conventions arose due to the need to effect a quiet erosion of the prerogative powers of the monarch. Such powers could be by convention vested in the cabinet thereby avoiding the need for any formal statutory declaration that this has occurred. Conventions thus allow the constitution to evolve and keep up to date with changing circumstances.

The main purpose of constitutional conventions is to ensure that legal framework of the constitution will be operated according with the prevailing constitutional values or principles of the period.

Conventions are not easy things to define: Marshall & Moody Define Conventions as: rules of constitutional behaviour which are considered to be binding by and upon those who operate the constitution but which are not enforced by the law courts…nor by the presiding officers in the Houses of Parliament.

Also, the Noted Constitutional Law Scholar Albert Venn Dicey – Defines Conventions as:

The rules which make up constitutional law, as the term is used in England, includes two sets of principles or maxims of a totally distinct character. The once set of rules are in the strictest sense ‘laws’ since they are rules which …are enforced by courts; these rules constitute “constitutional law” in the proper sense of the term, and may for the sake of distinction be called collectively “the law of the constitution”

 The other set of rules consists of conventions, understandings, habits or practices which, though they may regulate the…conduct of the several members of the sovereign power…are not in reality laws at all since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed “conventions of the constitution” or constitutional morality”

In other words, even a noted constitutional scholar such as Dicey does not offer a definition of conventions – he merely offers examples, and attempts to define them negatively by using the fact that they are not enforced by law.

Types of Conventions:

These are some examples of Conventions

The queen has to assent to all Acts of Parliament – technically, she can refuse to do so – but a convention has arisen that she must assent to all Acts of Parliament.

The Queen appoints the prime minister – and by convention, she must appoint the leader of the party with the most seats in the house

The Prime Minister must be a member of the house of commons

Conventions are binding – they are more than just habits – they create rules. They impose a standard of conduct which are expected to be followed. They are used for saying what ought to be done, and they are used as a basis for criticism if someone’s behavior does not live up to them. In other words, they are used to judge behavior, not just to predict it.

How does a convention arise? Past practice is not enough:

Merely because something has happened in the past is not a reason for it to be called a convention. Something  rises to the status of a convention if it imposes obligations. If the political actors in question are obliged to act in a particular way – e.g. if the queen is required to pick the leader of the party that has won the most seats to become the prime minister. The queen cannot decided to unilaterally ignore this convention and choose the prime minister from the party that won fewer seats.

For this reason, conventions must be distinguished from understandings, practices and habits:

If something is merely habit, you are merely describing something that takes normally takes  place. Calling something a habits, understandings and practice does not suggest any obligation – it merely describes something that takes place.

Because of their nature, it is often not clear when a convention can be said to be established – for example, today, it is an accepted convention that the crown has to give royal assent to any bill. However, in 1708, Queen Anne refused to give the royal assent to a bill she did not like while in 1829, George IV gave consent to a Bill which he disliked. This means that, sometime between 1708 – 1829, the convention arose.

Let us attempt to distinguish Laws from Conventions

Firstly, the source of a legal rule is clear – they emanate from Acts of Parliament or from judicial decisions. The source of a convention is often a lot less clear. Sometimes its difficult to tell whether an event is merely a practice or is actually a convention.

Secondly – legal rules are very certain in their meaning – conventions lack certainty in how they operate. You can see a clear example of this in the last British election, where there was a lot of uncertainty as to the exact procedure to follow to create a government when no party was able to obtain an absolute majority in parliament.

Thirdly, a change in a rule of law will be noticeable because laws are clear. So when they are changed, either there will be a change in a statute, or a judicial ruling which alters the law. However, conventions can be changed without formality. Therefore, they may be reinterpreted to meet a new situation.

The biggest difference however comes from the fact that the breaching a convention does not attract any legal sanction the way breaching a law does. If you breach a convention, you can be accused of acting unconstitutionally. But no legal sanctions attached to this breach. The sanctions are largely political. Nobody can sue to enforce a convention.

If a convention is breached, all it does is to call the very convention into question. It can lead to the destruction of the convention – or at least to its alteration. I will demonstrate how this happens when we discuss Ministerial Responsibility.

There are few things that one can immediately take out of these definitions:

1. Conventions are non-legal i.e. they cannot be enforced by courts of law
2. They are binding (the impose expectations on all political actors)
3. To breach a convention is to act unconstitutionally, but not unlawfully, since these are non-legal rules.

Ministerial Responsibility

There are two kinds of ministerial responsibility.

1. Collective Ministerial Responsibility
2. Individual Ministerial Responsibility

Collective responsibility is designed to force governments to remain united and strong. Basically, it requires that all ministers in a government should support a policy once it has been debated by the cabinet and agreed upon. Even if one disagrees with the policy, one is not permitted to express your disagreement. If you are a member of parliament and you openly disagree with a government policy, you are required to resign.

This rule has been departed from in a number of ways over the years – for example governments have temporarily allowed the breach of this convention to permit free debate on specific issues (in 1975, in the debate as to whether to Enter Europe more fully), also, the rule has been modified (Margaret Thatcher used an inner cabinet to make decisions to which all cabinet members were bound – even though they did not agree to it. Also, sometimes she would consult economists from outside of parliament, take their advice, and impose them on cabinet. Again, the ministers would be bound by these decisions. Both of these actions had the effect of destroying – or at least altering - the convention on collective ministerial responsibility.

The second convention concerning ministers governs individual ministerial responsibility. The individual responsibilities are fairly straightforward.

Firstly the minister is expected to behave appropriately at all times – that means no sexual misconduct or financial misconduct.

Secondly, it also means that the minister is responsible for the management of his ministry. Therefore, if a major policy proposal fails to achieve parliamentary approval, the minister would be expected to resign. Or if there is a major polic/administrative failing in your ministry, you have to resign.

Michael Howard and the Jail break - But this appears to be restricted in recent times to only policy failures rather than operational failures.

Even though conventions are not enforced in the courts, they have however been recognized by the courts. Therefore, in the case of AG v Jonathan Cape Ltd; Richard Crossman, a cabinet minister between 1964 and 1970, kept a political diary. Following his death in 1974, the first volume was ready for publication. It was sent to the cabinet secretary for approval, but this was refused on the ground that it would breach the doctrine of collective responsibility. Later, the authors literary executors allowed extracts of the diary to be published in the Sunday Times. The Attorney-General sought injunctions against the publishers to prevent the publication. The court refused to grant the injunction. It ruled that while it was clear that the doctrine of joint responsibility was generally understood, it found equally strong evidence that it is sometimes ignored.

Other examples where of cases where courts recognize the existence of constitutional conventions include the celebrated case of Liversidge v Andersen (1942). Also, in the case of Carltona Ltd v WORKS Commissioner (1943), where it was held by Lord Greene, MR, that ‘the duties imposed by ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried out if that was not the case. Constitutionally, the decision of such an official is the decision of the minister. The minister is responsible. It is he who must answer before parliament for anything that his officials have done under his authority, and, if for an important matter he had selected an official of such junior standing that he could not be expected to competently perform the work, that minister would have to answer for that in parliament.

Should Conventions Be Codified?

Some scholars have argued that given the importance of constitutional conventions to the UK constitution, efforts should be made to codify them. There is some precedent for this – conventions have been codified in Australia for example.

Those that argue against the codification of conventions point out that codifying conventions will not make them any more enforceable. Also, codifying conventions will not necessarily resolve disputes about what exactly a particular conventions is supposed to mean.

Questions have arisen as to If the convention of collective responsibility were enshrined in a statute, departure from it, as happened in 1975, might have been less readily undertaken.

Separation of Powers

The separation of powers is one of the most important concepts in constitutional law. For this topic, we are going to go into the origins and meanings of this doctrine – we will look at the most powerful exposition of it – i.e. Montesquieu’s L’Espirit des Lois.

We will then look at how this concept operates within the context of the United Kingdom – i.e. There is debate as to whether or not it actually exists in the United Kingdom.

Let me begin by saying that the doctrine has some fairly ancient roots. It can be observed in some of the writings of Aristotle, for example, when he tries to draw a distinction between what called the “deliberative” arm of government, the “officials” and the “judicial element”

Some semblance of a rudimentary form of this can be seen in the writings of John Locke in his “The Second Treatise of Government” where he draws  a distinction between three types of power: Legislative, executive and federative:

The modern exposition of the concept can be found in the writings of Montesquieu. He was traveling through Europe and spent some time in England in the court of George II i.e. in the 18^th century, in between 1728 and 1731. He published his book – which was called “The Spirit of the Laws” in 1748. In it, he observed that :

“When legislative power is United with executive power in a single person or in a single body or magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.

Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were to be joined to legislative power, the power over life and liberty of the citizen would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge would have the force of an oppressor.

All would be lost if the same man or the same body of principal men, either of nobles or of the people, exercised these three powers: that of making laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.”

Its clear that the purpose or the rationale underlying the doctrine of separation of powers is to prevent the abuse of power. From the above definition, you can see that this is a constitutional principle designed to ensure that the functions, personnel and powers of the major institutions of the state are not concentrated in one body.

What we are going to be looking at is how this functions within the context of the United Kingdom, with its largely unwritten constitution. But before we do that, let us look at the make up of the three main institutions of governance in the United Kingdom. I.e. what do we mean when we talk about the executive in the UK? What do we mean when we talk about the legislature. And what do we mean when we talk about the Judiciary.

Let’s begin with the Executive:

The executive may be defined as the branch of government that formulates policy and is responsible for its execution. Technically – the head of the Executive branch of government is the King or the Queen. The executive includes the Prime Minister and other Ministers. It also includes the civil service which administers the state as well as the security services. So the police and military are all parts of the executive arms of government, as are state agencies such as the customs, immigration authorities etc.

The executive is therefore divided into various portions:

The Legislature consists of three main elements –

Firstly, the Queen, whose role is to assent to all bills within the parliament

The House of Lords – this consists mostly of people who are life peers – i.e. people that have been appointed as lords by various prime ministers etc. It also includes all the Archbishops and Bishops of the Church of England. Finally it includes hereditary peers – i.e. people who owe their status as lords due to their ancestry.

It used to be the case that some members of the Judiciary were members of the house of lords as well. However, under reforms that have recently taken place in respect of the of UK constitution that is no longer the case. I am talking specifically here about the Constitutional Reform Act of 2005, under which “Law Lords” would sit in the House of Lords to hear cases.

The parliament of the UK is therefore “bicameral” i.e. it has two chambers – both of which play a legislative role, but the two chambers do not have the same amount of power. As I have already suggested, membership to the House of Lords is not by election – it is by appointment or by ancestry. Therefore the house of Lords is not directly accountable to the electorate. However, technically, all bills must be passed by both houses of parliament.

The House of Commons consists of 659 elected members. They hold office for up to five years – by which I mean that an election must be called in the UK at least every 5 years. In practice however, MPs only hold office for three to four years – most Prime Ministers do not wait for the full five year term before the call elections.

The House of Commons is made up of a Majority party and various Minority Parties. The party which wins the most seats makes up the Majority party. By convention, the leader of the Majority party is appointed by the queen as prime minister and is required to form a government.

The Judiciary –

The judiciary is the branch of government which adjudicates on disputes between the various state institutions, as well disputes between the state and the individual as well as between individuals. The Judiciary consists of all the judges in all the various courts in the UK – thus it includes magistrates and lay magistrates. The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009.^[1][2] It assumed the judicial functions of the House of Lords, which were exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 professional judges appointed as members of the House of Lords to carry out its judicial business. Its jurisdiction over devolution matters had previously been held by the Judicial Committee of the Privy Council.

Due to the doctrine of parliamentary sovereignty, the court is limited in its powers of judicial review, unlike the constitutional courts of some other countries. This means that it cannot overturn any primary legislation made by Parliament.^[3] However it can overturn secondary legislation if, for example, that legislation is found to be ultra vires of the powers in primary legislation allowing it to be made. Furthermore, under section 4 of the Human Rights Act 1998, the court may make a declaration of incompatibility which means that it believes that the legislation subject to the declaration is incompatible with one of the rights of the European Convention on Human Rights and such a declaration can apply equally to primary and secondary legislation. The legislation is not overturned by the declaration but powers under section 10 of the act are triggered to allow ministers to amend the legislation by statutory instrument to remove the incompatibility.^[4]

Technically, senior judges are appointed by the queen. The role of the judiciary is to interpret the laws of the UK as decided by the Parliament – and also to develop the common law. Unlike the US and many other jurisdictions, Judges in the UK do not have the power to challenge the validity of acts of parliament.

This is just a brief introduction to these branches of government. The focus for the rest of today will be the way the three branches interact. We are going to spend probably an entire class on each of the three branches here. What we need to understand, for the purposes of today’s lecture is how the three branches interact with each other, and what exactly we mean when we talk about the concept of separation of powers.

So I am going to begin with a simple question? Under the UK constitution, according to what you know and what you have read, is there a separation of powers?

Under modern or current understandings of the concept of separation of powers there is no insistence that there should be three totally separate and distinct branches of government. Such an structure would be unworkable and would probably lead to conflict – especially in the UK system which has a Parliament that is extremely strong. Even in a system where the powers are separated, there must be sufficient interplay between the three branches of government to ensure that government business can take place effectively – in other words there should be an efficient system of checks and balances in place. For example, for a law to be passed, it must first be proposed by the executive – then approved by the legislature and then interpreted and enforced by the judiciary. What the separation of powers seeks to achieve is to ensure that these three primary functions of the state are sufficiently dispersed among key government institutions, and not too much power is concentrated, in any particular state organ.

Lets us now look at the relationship between the key institutions of government and the state.

The executive and the legislature:

Under the UK system, there is no clear separation between the personnel in the executive and legislative branches of government. The prime minister and most of the ministers constitute the executive. They are also all members of parliament.  The Prime Minister, by convention, must be a member of the House of Commons – not even the House of Lords. Compare this, for example, to the situation in the US where there is a clear separation of personnel between the legislature and the executive. The president is not a member of the legislature in the US. So you can have a situation where the president is from one party, and the legislature is also from another party. This can never happen in the UK. Here, once you win a majority of seats in parliament you automatically form a government:

The separation of powers in the UK constitution is really not about personnel – its about functions and roles. The concern is to make sure that despite the parliamentary majority, legislation that is passed is sufficiently examined and scrutinized irrespective of the size of the Prime Ministers majority in Parliament.

Lets look at the relationship now between the Executive and the Judiciary

I think we would all agree that judicial independence is a key part of any and every democratic government. Judges must be seen to be impartial. The role of the judiciary in the UK is to interpret the law as parliament intended it to be interpreted and to ensure that the executive acts with the scope of the powers that the laws have been given. If Judges are not separated from the executive arm of government, they cannot be seen to be doing this in a unbiased way.

But as I said last week, judges in the UK, to a very great extent – to a much greater extent than exists in the US or in Ghana or Nigeria  - exercise a lot of restraint when it comes to dealing with other branches of government. There are a number of matters concerning the executive where the judges will just not interfere. One very obvious example of this is in the area of national security. When judges believe that national security matters are at stake, they have tended to traditionally defer to the executive’s discretion. For example – in the case of Liversidge v Andersen (1942) AC 206 the court had to decide if the legality of a law which granted a government minister the power to confine people if he believed if he had "reasonable cause" to believe that they had "hostile associations". The question to be decided was whether or not they had the authority to investigate the reasonableness of the decision of the executive. The court held that they did not, and parliament had intended to give the relevant minister an almost personal discretion to decide who to confine under the Act.

You can see another example of this in the case of the Council of Civil Service Unions v Minister for Civil Service  1985 AC 374 – this is also called the GCHQ case because it concerned the signals division of the British spy services – they are called the Government Communication Headquarters. The UK government had decided to ban the people that worked there from joining trade unions. They took the government to court and lost. The courts basically said that as this was a national security issue, they would not interfere in the decision of the government.

Lets Look at the relationship between the Legislature and the Judiciary

Parliament in the UK is supreme. Judges are required to interpret laws in a manner which gives effect to the intentions of parliament. Unlike the US, judges have no power to question the validity of an act of parliament. The best judges can do when they find a situation they do not like in a statute is to re-interpret the statute to suit what they consider to be the best outcomes.

One of the best judges at doing this was Lord Denning, MR the Master of the Rolls. He once stated that where there are gaps in legislation, judges have the power to fill in those gaps. But he was heavily criticized for this opinion.

Magor & St. melons RDC v Newport Corporation (1952 AC 189)

Lord Simonds

In terms of the relationship between the judiciary and the legislature, the legislature clearly has the upper hand. For example, occasionally Parliament has been known, when faced with a court decision that they do not like, to pass laws that specifically overturn that court decision. Remember, parliament in the UK is supreme – it can do anything except turn a man into a woman and a woman into a man.

Also – as I mentioned last week – the courts will not interfere in matters concerning the rights, immunities and privileges of parliament. So for example, parliamentarians have almost unrestricted rights of free speech – you cannot sue a parliamentarian for defamation in respect of the things he says on the floor of parliament.

Conversely, you will find that parliament also attempts a similar policy of non-interference in the affairs of the judiciary. For example, there is a well established convention that members of parliament will not criticize judicial decisions.

Also, when a matter is before a court, members of parliament will not debate it of the floor of parliament.