Public Law and Human Rights Past Paper PDF

**Module Title:** Public Law and Human Rights **Module Code:** LLB020C104A **Unit 2: Handout** **The sources of Constitution and constitutional conventions** **Reading for Week 2 Lecture:** -----------------------------------------------------------------------------------------------------...

**Module Title:** Public Law and Human Rights **Module Code:** LLB020C104A **Unit 2: Handout** **The sources of Constitution and constitutional conventions** **Reading for Week 2 Lecture:** -------------------------------------------------------------------------------------------------------------------------------------------------------- Anne Dennett, *Public Law Directions* (3^rd^ edition, 2024, Oxford University Press). **Please read** **Ch.2 (pp.24---40) as well as Ch.3 (pp.43-67)** -------------------------------------------------------------------------------------------------------------------------------------------------------- **Lecture** **Introduction** This week's lecture covers some important concepts of the UK constitutional system. One of the biggest controversies in the UK public law is the nature of its constitution. Namely, the UK lacks a single document which might be traditionally classified as a 'constitution'. This makes it also more cumbersome to determine which laws are to be regarded constitutional and which not. However, the fact that the British constitution is not to be found in a specific document does not mean that we do not have a constitution: if a country has rules about who holds the power to govern, what they can and cannot do with that power, and how that power is to be passed on or transferred, it has a constitution, even though there is no single constitutional document. **I. Defining constitution** Recent years have witnessed renewed attention to constitutions by both academics and policy makers. This is hardly surprising given that constitutions are the foundation for government in virtually every society around the world. They simultaneously create, empower, and limit the institutions that govern society. Outcomes, like democracy, economic performance and human rights protection, are all associated with the contents of countries' constitutions. Constitution as a function: comprises laws, theories, and interpretations that perform what are traditionally understood as "constitutional" functions. Constitution as a form: refers to the formal written charter, a form that is now nearly universal among modern states. **II. The UK constitution** Constitutions organise, distribute and regulate state power. They set out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state's citizens. Britain is unusual in that it has an 'unwritten' constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Britain's lack of a 'written' constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain's constitution as an 'uncodified' constitution, rather than an 'unwritten' one. - **Challenges of uncodified constitution** An uncodified constitution creates two problems. First, it makes it difficult to know what the state of the constitution actually is. Second, it suggests that it is easier to make changes to the UK Constitution than in countries with written constitutions, because the latter have documents with a 'higher law' status against which ordinary statute law and government action can be tested, and are only amendable via elaborate procedures. The flexibility of the UK constitution is evident from the large number of constitutional reforms since 1997, including the abolition of the majority of hereditary peers in the House of Lords and the introduction of codified rights of individuals for the first time in the Human Rights Act 1998. **III. Constitutional conventions** The British Constitution is derived from a number of sources. Statutes are laws passed by Parliament and are generally the highest form of law. Conventions are often unwritten practices which have developed over time and regulate the business of governing. Common law is law developed by the courts and judges through cases. The UK's accession to the European Union has meant that European law is increasingly impacting on the British Constitution. The UK is also subject to international law. Finally, because the British Constitution cannot be found in any single document, politicians and lawyers have relied on constitutional authorities to locate and understand the constitution. This places unusually significant role on constitutional conventions as the sources of law. According to Dicey, conventions are defined as: "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". A Constitutional convention is more than a custom, practice or usage and is something that inhibits or constrains the actions of a Constitutional actor. Unlike conventions, habits and practices do not prescribe "what *ought* to happen" but instead describe what *does* happen. Practices, although regarded as "potential conventions", are not binding like conventions. The main characteristic of conventions is that they are expected to be followed. Thus, the clearest definition of convention can only be an "expectation". **IV. A Codified Constitution?** There has been an ongoing debate whether Britain's constitution should be codified. Many arguments for and against have been brought. But in order to make an informed decision, more information is needed on codified constitutions. **I. Magna Carta** It is said that the British Constitution started with the Magna Carta in 1215. That makes Magna Carta one of the oldest legal texts in the modern Western world and is thus a world-class brand. Magna Carta stands for human rights and democracy. It stands for trial by jury. It stands for free speech, the rule of law and personal liberty. Except it doesn't mention any of these things --- even in translation.  **Magna Carta is significant because it is a statement of law that applied to the king as well as to his subjects. Although the idea of England as a community with a law of the land independent of the will of the king was implicit in custom before 1215, Magna Carta gave this concept its first clear expression in writing.** **Magna Carta\'s clauses provided the basis for important principles in English law developed in the fourteenth through to the seventeenth century. The phrases 'to no one' and 'no free man' gave these provisions a universal quality that is still applicable today in a way that many of the clauses relating specifically to feudal custom are not. The emphasis on grants of taxation requiring the consent of the kingdom also paved the way for the development of parliament.** Magna Carta is a constitutional instrument --- standing alongside the Petition of Right 1628, the Bill of Rights 1689, the Act of Settlement 1701 and the Act of Union 1707. However, it is still cited in the courts of the United Kingdom --- but often as little more than a historical flourish. Judges do not enforce Magna Carta today because its terms are too broad to be applied by the courts and many of its clauses and principles have been codified in modern wording in more recent laws. **II. Comparative constitutions** A constitution can be defined as the fundamental, underlying document which establishes the government of a nation or state (other definitions, however, may be more precise). Very often the United States Constitution, originally adopted in 1787, is brought as the prime example of a codified constitution. The US Constitution has been amended 27 times and is the basis for all decisions by the U. S. Supreme Court (and federal and state courts) on constitutionality. The case of Marbury v. Madison (1803) firmly established the power of the US Supreme Court to strike down federal statutes it found unconstitutional, making the Supreme Court the final arbiter of constitutional interpretation. Unfortunately, state constitutions have gathered tremendous amounts of baggage of detail by amendment over the years, and it is more difficult to \"fine tune\" state constitutions by further amendment than it is to enact statutes (pass new laws.) However, state courts are bound by their state\'s constitution on fundamental issues. The British constitution is an unwritten body of legal customs and rights that has evolved over time and consists of myriad of sources. That essentially makes it also more flexible and it can be argued that the British constitution can be amended more easily as it is not subject to strict legislative procedure. **Workshop Preparation** **1. Practical exercise** The following are examples from a variety of constitutions of different countries: - United States of America - Cuba - Germany - Japan - United Kingdom Read through the extracts below and compare them to one another. **Q1: Which country's constitution do you think they are from?** **Q2: What are the main similarities and differences between them?** **EXCERPT 1** **"ARTICLE 9** The State: as the Power of the people, in the service of the people themselves, guarantees that there will be no man or woman capable of working who lacks an opportunity to obtain an employment with which he \[or she\] can contribute to the goals of society and fulfill his \[or her\] personal needs; that there will be no person incapacitated for work who lacks decent means of subsistence; that there will be no ill person lacking medical attention; that there will be no child lacking a school, food, and clothing; that there will be no youth lacking the opportunity for study; that there will be no one lacking access to study, culture, and sports. **ARTICLE 44** Women and men enjoy equal economic, political, cultural, social, and familial rights. The State guarantees that women will be offered the same opportunities and possibilities as men to achieve their full participation in the development of the country. The State organizes institutions such as child centers, semi-boarding and boarding schools, residences for care of the aged, and services to aid the working family in the performance of its responsibilities. Providing for their health and for a healthy offspring, the State grants working women paid maternity leave before and after childbirth, and temporary work options compatible with their maternal function. The State strives to create all the conditions that will lead to the implementation of the principle of equality." **EXCERPT 2** **"Article 3** 1\. All persons shall be equal before the law. 2\. Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. 3\. No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability. **Article 7** 1\. The entire school system shall be under the supervision of the state. 2\. Parents and guardians shall have the right to decide whether children shall receive religious instruction. 3\. Religious instruction shall form part of the regular curriculum in state schools, with the exception of non-denominational schools. Without prejudice to the state\'s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged against their will to give religious instruction." **EXCERPT 3** **"Article 14.** All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin. Peers and peerage shall not be recognized. No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it. **Article 25.** All people shall have the right to maintain the minimum standards of wholesome and cultured living. In all spheres of life, the State shall use its endeavors for the promotion and extension of social welfare and security, and of public health. **Article 26.** All people shall have the right to receive an equal education correspondent to their ability, as provided by law. All people shall be obligated to have all boys and girls under their protection receive ordinary education as provided for by law. Such compulsory education shall be free." **EXCERPT 4** **"Article II** --------------- **Article XIV**  ---------------- **Article XV** The right of citizens of \[\-\--\] to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude." **EXCERPT 5** #### ***["Article 2]{.smallcaps}*** #### ***[Article 14 ]{.smallcaps}*** **2. Answer the following questions:** 1. What is the difference between uncodified and codified constitutions? 2. Name two reasons in support of codified constitutions, and two reasons in support of uncodified constitutions 3. If constitutional conventions are not legally enforceable, why have them at all? What functions do they have in the UK constitutional and political system? 3\. **Debate:** Prepare to debate on topic ["Should Britain have a Written Constitution?"] You will be divided into two groups taking the opposite sides and hold a debate with well-reasoned arguments. **Task** [Group 1 (YES)] Please prepare at least 3 legal arguments as to why Britain [should have] a written Constitution. [Group 2 (NO)] Please prepare at least 3 legal arguments as to why Britain [should NOT] have a written Constitution. Each group will have 10 minutes to prepare its case and 5 minutes to present its arguments, followed by a moderated debate. 4. Write answers to the 'self-test questions' on pp.41, 68 of Dennett, bring your answers to the workshop and be prepared to discuss them. 5. Write short outlines to the '**Exam questions**' on pp.41, 68 of Dennett and be ready to present your plan for answering it. 6. Answer the quiz questions in the 'online resources' section accompanying Dennett's ch.2 and ch.3 at **[www.oup.com/he/dennett3e](http://www.oup.com/he/dennett3e)** and be ready to discuss them.