Podcast: the Ugly
A number of commentators have argued that, in the only meaningful sense of the word, the UK has no constitution. Do you agree, and has this remained true following devolution to Scotland and the Human Rights Act 1998?
Podcast: the Ugly
The Scotland Act and the HRA do not affect Parliament’s ability to enact legislation and are unentrenched. (1) This is a poor beginning as it says nothing about the structure of the essay and says nothing of the meaning of a constitution, which is essential to the question. This means that the doctrine of Parliamentary Sovereignty remains intact. If the courts find a piece of legislation, passed either before or after the HRA to be incompatible with one or more of the Convention rights, this will not affect the validity or continuing effect of that legislation (ss 3(2) and 4(6)). Parliamentary sovereignty is the UK constitution (2) This is an overstatement and reflects only one view of the constitution, which demonstrates that the student has not appreciated a range of views on the constitution as required. and, therefore, it is technically incorrect to say that the UK has no constitution; however, the HRA and Scotland Act are strong instances of conventional and normative limits to the power of Parliament, because as regards Scotland, the Scottish Parliament and government are limited by the Scotland Act itself, the ECHR and EU law,while, as regards the HRA, the rights of UK citizens are authoritatively identified and stated to be fundamental, and executive actions are unlawful if they infringe such rights, unless primary legislation inescapably mandates or authorises the infringement. (3) While there are some good points here they are rather jumbled and incoherent, which obstructs the analysis.
The Scotland Act helps answer the English question, which arises because there is no UK Constitution and because the UK Parliament, as a result, has to serve as the Parliament for England, but with the problematic feature of containing a significant proportion of MPs from the non-English nations. Out of a total of 646 MPs, 117 represent non-English constituents: Scotland has 59 (a number recently reduced from 72 in partial recognition of the English question), Wales has 40 and Northern Ireland has 18. There are two distinct consequences that follow from this: first, what might be termed the government-formation issue; second, the legislation-legitimacy issue. As to the first, the problem is simply that it is possible that, in future, there will be a UK government that only holds power due to the presence in Westminster, as part of the governing party’s majority, of Scottish and Welsh MPs (hereafter the ‘Celtic MPs’). There would be nothing wrong with such a situation, save for the fact that the UK government also has to act as the English government (since there is no other). Thus the English people face the possible future of being governed by an administration that is a minority one in terms of seats: in blunt terms, by a Labour government when they voted Conservative. (4) This is clearly irrelevant information – a common error in student essays associated with poor revision is to introduce irrelevant analysis.
So, in some ways, the UK does have a constitution, but it is not based on Parliamentary Sovereignty. Before the HRA and Scotland Act this was not so much (5) This is rather vague. the case although government interference required authorisation the government could always enact legislation (6) This is obviously incorrect – Parliament enacts legislation. to give it a wide discretion. Also courts will not apply Acts of Parliament that conflict with rights deriving from European Community law. (7) The relevance of this requires some explanation and the case of Factortame Ltd and Others v Secretary of State for Transport (No 2) (1991) should be referred to. Furthermore some judges uphold basic rights and freedoms as part of the common law (e.g. judicial review of executive action) – a basic requirement of the rule of law – which the judges would not allow Parliament to remove. Also Parliament is not always considered supreme because the Courts could refuse to apply the doctrine of implied repeal, as they do in relation to ‘constitutional statutes’ (Thoburn (2002)). (8) This point also requires an explanation of implied repeal, as it relates to parliamentary sovereignty. Even though the HRA is not entrenched, for the first time courts have to read both past and future legislation into conformity with the Convention rights if possible (s 3(1)); see also A (2001), Ghaidan v Mendoza (2004) and Secretary of State for the Home Department v AF (no 3) (2009). So, in conclusion, the effect of the HRA and Scotland Act is not to create a British constitution, as they do not affect the ability of Parliament to repeal ‘constitutional guarantees’, even if they do strengthen normative constitutionalism. (9) A very basic conclusion that doesn't entirely reflect the analysis.