Notes & Practice on Constitutional Law

Does the UK have a constitution?

Yes, the United Kingdom has a constitution, but it is not contained in a single written document. Instead, it is a combination of statute law, common law, and unwritten conventions. This makes the UK constitution flexible and constantly evolving. Although not written in one document, various statutes and treaties, such as the Magna Carta, the Bill of Rights, and the Parliament Acts, embody important elements of the UK’s constitution.

What is a constitutional convention?

A constitutional convention is an informal and uncodified procedural agreement followed by the institutions of a state, even though it does not have legal force. These conventions are an important part of the constitution and guide many government functions. While conventions are binding on those to whom they relate, they are not enforceable by the court as they are not laws.

What is the effect of a Declaration of Incompatibility?

A Declaration of Incompatibility can be made by the court under the Human Rights Act 1998. It signifies that the legislation in question is incompatible with one of the Convention rights. However, such a declaration does not change the law. Only Parliament has the power to remove the incompatibility. If secondary legislation also suffers from a similar fault and cannot be remedied without revocation, the court may declare it incompatible. The court can also strike out secondary legislation that is not compatible with Convention rights, provided the primary legislation does not prevent this.

How is freedom of expression protected by English law?

Historically, there has been no express legal basis for the right to freedom of expression in English law. However, the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998, requires the courts to interpret domestic legislation in a way that ensures compliance with Article 10 of the Convention. Article 10 guarantees the right to hold opinions and to receive and impart information and ideas. This freedom is subject to restrictions prescribed by law, necessary in a democratic society for reasons such as national security, public safety, prevention of disorder or crime, or maintaining the authority and impartiality of the judiciary.

What is a Constitutional Monarchy?

A Constitutional Monarchy is a form of government in which a Monarch serves as the Head of State within the parameters of a written, unwritten, or blended constitution. Unlike an Absolute Monarchy, where the Monarch holds sole political power without legal constraints, a Constitutional Monarchy operates according to rules set by the constitution. In the United Kingdom, the rights and duties of the Sovereign are established by conventions since the UK lacks a written constitution. These conventions are non-statutory rules that carry significant binding force.

What is Prorogation of Parliament?

Prorogation of Parliament marks the end of the current session and is followed by The Queen’s Speech, which initiates the next session. During prorogation, neither House of Parliament can meet, debate, or pass legislation. Government policy cannot be discussed, and members cannot ask questions of Ministers. Bills that haven’t completed all stages are lost and must start anew in the next session. However, the Government remains in office and can exercise its powers, make delegated legislation, and bring it into force. Acts of Parliament cannot be passed or further spending approved without Parliament’s involvement. The period between a Royal Proclamation and the meeting of Parliament must be at least 20 days, extendable by up to 14 days.

What is the Queen’s relationship with the Armed Forces?

As the Sovereign and Head of State, the Queen is also the Head of the Armed Forces. She holds the power to declare war and peace, a responsibility that originated from the Monarch’s historical role in raising and maintaining the Army and Navy. However, today, the Queen can only exercise this power based on the advice of Ministers.

While it is commonly accepted that the Royal Prerogative power to deploy the Armed Forces outside the UK belongs to the Prime Minister, who has personal discretion in its exercise and is not legally obligated to consult others, it is highly unlikely that the Prime Minister would make such decisions without seeking advice. Parliament does not have a formal role in approving deployments, although governments typically inform Parliament about the decision to use force and the progress of military campaigns.

What are Royal Prerogatives?

Royal Prerogatives refer to powers historically exercised by the Monarch. In modern times, these powers are mostly exercised by Government Ministers, either in their own right or through the advice they provide to the Queen. The Queen is constitutionally bound to follow this advice. Some have called for reform of prerogative powers due to their exercise without parliamentary authority.

What are Personal Prerogative powers?

Personal prerogative powers are those that can be exercised directly by the Head of State without requiring approval from another branch of the Government. Under common law, there are two main personal prerogative powers that reside with the Crown:

• Appointment of a Prime Minister.
• Granting Royal Assent. There are usually strict constitutional conventions governing the use of these powers, and violating these conventions would typically lead to a constitutional crisis.

What is the structure of the UK Parliament? 

The UK Parliament consists of two houses: the House of Lords (Upper House) and the House of Commons (Lower House). The Queen or Monarch is the third component of the legislature. Individuals cannot be members of both houses, and members of the House of Lords are legally prohibited from voting in elections for members of the House of Commons.

What is the primary role of the House of Lords?

The primary role of the House of Lords is to scrutinize legislation proposed by the House of Commons. They do this through debates and by proposing amendments to the legislation. However, the House of Lords’ powers are limited by the Parliament Acts of 1911 and 1949, which allow certain types of bills to be enacted without the consent of the House of Lords.

Membership of the House of Lords can be achieved through inheritance appointment (Lords Temporal) or by holding an ecclesiastical role in the established church (Lords Spiritual). The Lords Spiritual consists of 26 senior bishops of the Church of England. The majority of the remaining members, known as Lords Temporal, are life peers who are appointed by the Monarch on the advice of the Prime Minister. To become a Lord, an individual must be at least 21 years old. Life peers hold their title for their lifetime, and it becomes void upon their death.

Members of Parliament (MPs) for the House of Commons, which is the “lower house” of Parliament, are directly elected through a first-past-the-post system in electoral districts called constituencies. During an election, eligible voters in a constituency choose one candidate to be their MP. The candidate with the most votes becomes the MP for that area until the next election. In the UK, eligible voters can cast their votes in person at a polling station, by post, or by proxy.

What is an Act of Parliament?

An Act of Parliament is a statute, also known as a law, that is enacted as primary legislation by a national or sub-national parliament. It creates new laws or modifies existing ones. To become an Act, a Bill must be approved by both the House of Commons and the House of Lords and receive Royal Assent from the Monarch. A Bill can originate in either the House of Commons or the House of Lords. The powers of the House of Lords in relation to legislation are restricted by the Parliament Acts of 1911 and 1949, which provide a mechanism to bypass the consent of the House of Lords in certain cases.

What is delegated legislation?

Delegated legislation refers to detailed changes made to existing laws under powers granted by an Act of Parliament. Instead of being passed directly by Parliament, this legislation is made by a person or body to whom authority has been delegated.

Delegated legislation primarily consists of statutory instruments made by Government Ministers. Additionally, it can include Rules or Codes of Practice, Orders-in-Council made by the Queen and the Privy Council (such as transferring responsibilities between government departments), and by-laws made by a local authority. The process of creating Statutory Instruments is governed by the Statutory Instruments Act 1946.

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