Constitutional and administrative law
Look at the passage of a bill and the different stages.
Read/watch the news!! What could affect the British constitution at the moment?
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Liam Fox, Minister of Defence
NHS Bill going through the House of Lords (they might vote against the bill, why would they
do this?)
Look at confinder
Turkey’s and Morocco’s constitutions, and the different difficulties it’s having.
What should a constitution contain?
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Fundamental principles and values
Relationship of state institutions to each other
Relationship of the citizen to the state
The British Constitution: It is “…extraordinarily dynamic and flexible with the capacity to evolve in
the light of changes in circumstances and society.” A house for the Future, Cm.4534 (2000)
The British System of Government
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Constitutional Monarchy – a monarch who has power but only for ceremonial purposes. i.e.
the Queen. We have a head of state, but she only has ceremonial powers which are normally
carried out by the Government // Absolute Monarchy, = she has all the powers
Cabinet Government – to propose legislation, it is made up of ministers of state. Many of the
members of the cabinet are also members of the legislator (MPs)
Parliamentary structure
Separation of powers – powers are split between different bodies
Parliamentary sovereignty – Parliament is the ultimate authority in the UK, even though Parl
can give away power, but it can always take it back. (How does European sovereignty
interacts with Parliamentary sovereignty?)
Bicameral Legislature
Only one house is elected – House of Commons
General Election must be every 5 years.
Why do we have to have an election every 5 years?  change to the constitution due to the
coalition. Fixed term parliament act 2011, change to the constitution this year and the bill for fixed
term parliament was passed.
Which law applies when no single party has a majority in a General Election? We don’t have a law
that governs what happens in this situation, it’s more by convention. We’ll probably look at what
happened in similar situations in the past.
Which statute governs how the PM is appointed? By convention
Who are the members of the House of Lords? It is made up people who are appointed, but is also
made up of hereditary peers. Life peers  they sit in the House of Lords for the whole of their life.
100 of those were appointed by David Cameron in the past year. Retired Law Lords, around 20
bishops and archbishops…
What was the effect of the Parliament Act 1911? Parliament Act 1911 forbids certain Lords from
vetoing certain legislations. They can delay certain acts for 3 years but is now 2 years…. LOOK THIS
UP! Hunting Act was put through this.
British Constitution
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Historic Constitution
Political Constitution
Parliamentary Constitution
Main characteristics of the UK Constitution
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Uncodified
Evolved (over time)
Unitary  The power is centred in one place = Parliament. Opposite = Federal (USA) 
Scotland can make some of its own laws LOOK THIS UP
Flexible
Dominant Executive
Parliamentary Sovereignty
Sources of the British Constitution
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Statute Law (e.g. Bill of rights, Parliament Acts
Common Law (e.g. Royal prerogative powers) = judge made law
Convention (non-legal rules)
Law and Custom of Parliament
International Source (e.g. EU, European Convention on Human Rights DO NOT CONFUSE
THESE! THEY ARE COMPLETELY DIFFERENT)
Notes from Hilaire Barnett’s book – Constitutional and Administrative Law
– 8th ed –routledge 2011
‘Constitutional law is concerned with the role and powers of the institutions within the state and
with the relationship between the citizen and the state’.
It’s a ‘living, dynamic organism which at point in time will reflect the moral and political values of the
people it governs’
“The UK appears to be unique in not having a constitution which is conveniently set out in a single
written document’ = Israel and New Zealand. ‘Not all rules will be written’ in any constitution
Our constitution is the ‘product of many centuries of continuous… evolution’
‘’Constitutionalism’ is the doctrine which governs the legitimacy of government action. …in relation
to constitutions written and unwritten – conformity with the broad philosophical values within a
state. Constitutionalism implies something far more important than the idea of ‘legality’ which
requires official conduct to be in accordance with the pre-fixed legal rules. A power may be
exercised on legal authority; however, that fact is not necessarily determinative of whether or not
the action was ‘constitutional’. ‘
‘Constitutionalism suggests the limitation of power, the separation of powers and the doctrine of
responsible accountable government.’
‘A constitution is a set of rules which governs an organisation’ (every organisation needs one to
define the powers). … It will also make provision for the manner in which the organisation relates to
outside bodies.
14/10/2011
Sources of the British constitution
Constitutional conventions
Huge constitutional reforms
Devolution:
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Scotland Act 1998, (Scotland Bill 2010 – 11)
Government of Wales Act 1998 / Government of Wales Act 2006
Northern Ireland Act 1998
Human Rights Act 1998
House of Lords Act 1999
Freedom of Information Act 2000
Constitutional Reform Act 2005
Constitutional Reform and Governance Act 2010
Fixed Term Parliament Act 2011
Manifesto positions on Bill of Rights
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Labour
· Not interested.
· We will not repeal the Human Rights Act.
Conservatives
· We will replace the Human Rights Act with a UK Bill of Rights.
Lib Dems
· Not interested.
· Protect the Human Rights Act.
Nick Clegg “Human Rights act… it is here to stay”
Dicey (19th century lawyer) – argued that rules were very important – authoritative
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“The constitution ... is seen to consist of two different parts; the one is made up of
understandings, customs, or conventions which, not being enforced by the courts, are in no
true sense of the word laws; the other part is made up of rules which are enforced by the
courts, and which, whether embodied in statutes or not, are laws in the strictest sense of the
term, and make up the true law of the constitution.”
Conventions
What are constitutional conventions? What is the role of conventions? Should conventions be
codified (made more certain instead of being vague)?
Constitutional conventions “fill in the gaps within the legal structure of government”. These
rules are very important in the UK, since they help us understand. They are rules that govern
between the different branches of government, between the house of Lords/Commons. They
are flexible rules that help our constitution to be flexible
“….We have never had a year zero in this country. But that has been achieved not by statutes, ...
but by the acceptance of constitutional conventions.” Lord Hoffman, Hansard, 12 Feb 2004
Constitutional Conventions regulate institutional relationship
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PM advises the Queen as to when Parliament should be dissolved
PM is the leader of the party with an absolute majority of seats in the House of Commons
By convention the Queen’s powers are exercised by Ministers
A government defeated on a motion of no confidence must resign
A Minister is personally responsible for what happens in his department
A General Election must take place every 5 years
It is framework within which power is exercised. The Queen has power but she doesn’t exercise it.
There are no legal consequences if a convention is broken (However if the Queen broke a
convention there would be a lot of criticism and potentially a conventional crisis).
Conventions can change (over time) since they are flexible, if they weren’t flexible they would
become rules and no change would be able to take place.
“The characteristics of conventions, namely that they supplement the laws which are enforced by the
courts would seem to preclude their precise definition.” Wade, 1960
“We do not offer a definition of "convention". We believe we will know one when we see it”
Codifying Conventions - Joint Committee on Conventions (2006)
Case: Madzimbamuto v Lardner-Burke
“….they provide the flesh which clothes the dry bones of the law; they make the legal constitution
work; they keep in touch with the growth of ideas.” Sir Ivor Jennings The Law of the Constitution
(1959)
Jennings, ‘The Law and the Constitution’ (1959)
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What are the precedents?
Did the actors in the precedents believe they were bound by a rule?
Is there a reason for the rule?
Can conventions crystallise into law? Some conventions are even more important than laws
themselves.
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Reference re Amendment of the Constitution of Canada (1982). It couldn’t amend its own
constitution so it asked Britain to do it for them. The Prime Minister wanted to amend the
constitution without the agreement of all the provinces of Canada. It was found that this is
legal for the PM to do this, but it was a breach of constitutional convention. Because the
government didn’t follow this very important constitution, it would have possibly led to a
constitutional crisis if they hadn’t decided to go back and consider the other provinces.
18/10/11
-Parliament Act 1911 because of a breach of a convention.. LOOK IT UP
Individual ministerial responsibility – work of individual ministers and the departments that they
oversee.
Ministerial collective responsibility – work in teams for the departments
Individual Ministerial Responsibility
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The government is constitutionally responsile to Parliament
The government must get the suppose of Parliament for its policies
How do such conventions ‘legitimise’ the constitution?
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Accountability, how do they work? How are they supposed to work?
Are they a fundamental part of the British constitution?
Why does context matter so much?
If a minister does something that is embarrassing, and becomes a source of embarrassment to the
government then the minister must resign.
The Hutton enquiry (2003/04)
“The [chief of defence staff] had responsibility for military matters, the permanent secretary had
responsibility for personnel matters and I was responsible for political leadership of the
department".
(Geoff Hoon, Defence Secretary - Hutton Inquiry, 2003)
Ministers try to not take responsibility for their actions and it can be hard to pin what has happened
on a particular minister. If a minister is involved in a sexual/expenses scandal or offences of national
security then they must resign.
- A number of ministers resigned in the first few days of June 2009 over expenses scandal.
Resignation over questionable expenses  David Laws, chief secretary to the Treasury, was forced
to stand down in May 2010 after The Daily Telegraph revealed that he claimed £40,000 of taxpayers'
money to pay rent to his partner.
Media criticism leads to them being attacked in other areas where they are possibly vulnerable.
Codifying Convention
Ministerial Code:
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Standards of conduct expected from Ministers
Published after a General Election (revised after every election)
Establishes levels of accountability for Ministers
The code states that ‘Ministers must resign if they knowingly mislead Parliament’. It is the PM to
decide whether someone keeps their job or not.
LOOK UP LIAM FOX AND THE MINISTERIAL BREACH
Collective Ministerial Responsibility
“The Cabinet is the core of the British constitutional system. It is the supreme directing authority. It
integrates what would otherwise be a heterogeneous collection of authorities exercising a vast
variety of functions. It provides unity to the British system of government”
Ivor Jennings (1936)
The cabinet is a group of ministers who meet weekly to discuss legislation….Once a decision has
been made an individual minister has to agree with a collective joint decision made by the
government otherwise they have to resign even though they might disagree. Michael Heseltine
stormed out LOOK THIS UP :D Hansard June 1977, Clare Short
Robin Cook 18 March 2003
“It has been a favourite theme of commentators that this House no longer occupies a central role in
British politics. Nothing could better demonstrate that they are wrong than for this House to stop
the commitment of troops in a war that has neither international agreement nor domestic support. I
intend to join those tomorrow night who will vote against military action now. It is for that reason,
and for that reason alone, and with a heavy heart, that I resign from the government.”
HC Deb., vol 401, col 728 (17 March 2003)
Richard Crossman’s diaries – After his death his wife released them and the Sunday times published
extracts. There was a convention against this since Ministers didn’t want the discussions in collective
ministerial meetings to be published to the public. There was a legal principle –a duty of
confidentiality. Look at this part of the lecture online again........
Codifying conventions – Joint committee on conventions (2006)
“,,,the word ‘codification’ is unhelpful, since… it implies rule-making, …. It would raise issues of
definition, reduce flexibility, and inhibit the capacity to evolve. It might create a need for
adjudication, and the presence of an adjudicator, whether the courts or some new body, is
incompatible with parliamentary sovereignty.”
Joint Committee on Conventions (2006)