British Constitutional Law Research Articles

The Impact of Brexit on the British Constitutional Law

Brexit as a hybrid phenomenon, that is, both legal and political, is the next stage in the debate on the place and role of the European Union (EU). The analysis of the impact of EU legislation on the shape of British constitutional law requires establishing the admissibility of reversing existing constitutional modifications. The author will argue that the age of globalisation and establishing legal network links, the participation of states in supernational organisations can result in irreversible modifications of the scope and meaning of constitutional law. In a simplified way, individual legal systems in a legal pluralism are “open”. The changes taking place are irreversible because they concern the foundation of competences as well as the system position of individual national authorities.

Formation and Development of the Doctrine of Rule of Law in English Legal Thought

The subject of the study is the English constitutional doctrine of the rule of law, taken in the historical evolution of its understanding by leading authoritative lawyers and thinkers starting with H. de Bracton and ending with A.V. Dicey and modern British constitutional law jurists. The article presents both positivist and non-positivist interpretations of the doctrine. Particular attention is paid to the classical interpretation of the doctrine of the rule of law in the work of A.V. Dicey "Introduction to the Study of Constitutional Law" (1885): the main meanings of the concept are revealed and critical remarks set out in the British legal thought of the XX century are presented. The article concludes with a brief summary of the modern understanding of the doctrine of the rule of law in the contemporary legal literature. The novelty of the research is that for the first time in Russian jurisprudence, the historical reconstruction of the formation and development of ideas that make up the content of the doctrine of the rule of law is revealed. Special attention is paid to the contribution to the development of this legal doctrine by such jurists as J. Fortescue, E. Coke, S. Rutherford, J. Locke, A.V. Dicey. In addition, attention is paid to the distinction between interpretations of the concept by lawyers of the positivist and non-positivist legal thought. Critical understanding of A.V. Dicey's teaching on the rule of law and modern interpretations of the concept are presented for the first time in the Russian legal literature.

Revolutionary amnesia and the nature of prerogative power

Abstract What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards. It assumes that these powers are inherent in or intrinsic to the Crown and it assumes that these powers are common law powers, meaning that they are constituted or conferred by the common law. This article takes issue with these conceptions of the nature of prerogative power. It shows that the idea that prerogative powers are sourced in the common law is derived from the seventeenth century’s theory of the ancient constitution; a theory famously advocated by Sir Edward Coke and embodied in his observation that “the King hath no prerogative but that which the law of the land allows him.” However, as the article shows, this theory of the ancient constitution was not an accepted theory of law in the seventeenth century, but rather an intensely contested political theory. It occupied a battlefield of constitutional ideas along with theories of kingly power sourced in conquest and the divine. Moreover, although these theories disagreed about the source and extent of prerogative power, they all posited a protocorporate Crown wedded to dynastic succession. The article shows that, from the perspective of a corporate Crown, the Glorious Revolution of 1689 resulted in the effective dissolution or dormancy of the kingly corporation embodied in James II, requiring that the Crown and kingly power be remade anew in the United Kingdom’s last “historically first” constitutional event. Through a close reading of the Bill of Rights and the proceedings of the Convention Parliament of 1689, the article evidences the statutory remaking of the Crown and prerogative powers and shows how from 1689 to today prerogative powers should be understood as a grander form of statutorily delegated power.

Precautionary proportionality principle as an instrumental preventive measure from the COVID-19: Can European human rights survive in the state of public health emergency?

The authors believe that the C. Schmitt’s notion of unconstraint sovereignty is not flawless. Both A. Dicey’s theory of British constitutional law and the international human rights instruments have required the measures of the derogation of human rights must be given in accordance with proportionality principle. However, these normative requirements have hardly been applied to the judicial scrutiny by the two supranational courts in Europe. Correspondingly, some European public authorities favour the more radical precautionary principle. Although this principle is more effective in suppressing the new coronavirus, it is associated with numerous side effects. Thus, the authors propose in this article an innovative concept of precautionary proportionality principle.

Parliamentary sovereignty and the locus of constituent power in the United Kingdom

Abstract This article argues that parliamentary sovereignty’s assimilation of constituent power—the ultimate power in a legal order to create and posit a constitution—has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the United Kingdom currently faces. By conceptualizing a more antagonistic relation between the Crown in Parliament and “the people” by questioning the democratic credentials of the former, this article contends that the UK constitutional order can be reinvigorated. This reappraisal, however, also requires the interrogation of the notion of “the people” in the UK constitutional order itself. Thus, despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in “crisis” in search of a paradigmatic revolution. A descriptive—as distinct from normative—account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and “the people.” Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much of what the idea of constituent power does. However, this does not mean that constituent power is vested in “the people”; rather, the locus of constituent power in the United Kingdom should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and “the people.”

Constitutional law and empire in interwar Britain: universities, liberty, nationality and parliamentary supremacy

This article examines the influence of imperial law, law outside the UK but within the British Empire, on the development of British constitutional law in the interwar period. It first looks at public law within the universities. Four foundational textbooks in British public law are then analysed to assess the extent to which the academic exposition of constitutional law was influenced by imperial law. The influence of imperial law on the areas of liberty/habeas corpus and citizenship is then considered. The article concludes by re-examining the doctrine of parliamentary supremacy and argues that Dicey accepted a variant of the ‘manner and form’ objection in the final edition of his textbook completed before his death.

Revolutionary Amnesia and the Delegated Nature of Prerogative Power

What is the nature and source of prerogative power? Where does it come from and how was it created? British constitutional law makes several assumptions in these regards, none of which have been subject to careful interrogation. Presumptively, it assumes that these powers are powers constituted in the midst of time through an amalgam of conquest, religion and community. It assumes that these kingly powers are original powers, meaning that the end for which a power is to be used is determined by the power-holder; they are not delegated powers subject to purposive limitation as are statutorily delegated powers. And it assumes that the prerogative powers exercised today are the same kingly powers exercised by Kings and Queens, time out of mind. These assumptions are the structural drivers of the arguments on both sides of the recent debate and case law surrounding the Government’s use of the prerogative of prorogation. However, as this article demonstrates, historically situated, all of these assumptions are inaccurate. The article shows how we have ignored the revolutionary implications of the Glorious Revolution in 1688; our last “historically first” constitutional event. When we interrogate this event we see that the prerogative powers exercised by the executive today are not original but delegated, and they were not constituted prior to 1688 but were formed through statutory delegation from a constituted parliamentary sovereign in 1689, the Convention Parliament. They are merely a grander form of statutory delegated powers and as such can be subject to judicial review which focuses on the use of those powers for their proper purpose. This insight renders the Supreme Court’s approach in Miller II unnecessary, and the Divisional Court’s approach untenable.

The Application of Legal Maxim “King Can Do No Wrong” In the Constitutional Law of UK & USA: An Analytical Study

The legal maxim “King can do no wrong” was in full force in the English constitutional law ever since the emergence of British Empire. The doctrine provided absolute immunity to the Crown. The king started losing his absolute prerogatives, in centuries long battle for power among the Crown and lord businessmen, which eventually resulted in the concept of liable government in the UK in the shape of the crown proceedings act 1947. On the contrary the US constitutional law is silent about the presidential immunity, following the maxim “no one, even the government is above the law”. However, the US Supreme Court is expanding the application of this doctrine by granting the immunity to the president in cases where his act falls within the constitutionally assigned duties along with negating it in cases where the act of president falls outside the outer perimeters of his constitutionally assigned duties.

Parliamentary Sovereignty and the Locus of Constituent Power in the United Kingdom

This paper argues that parliamentary sovereignty’s assimilation of constituent power — the ultimate power in a legal order to create and posit a constitution — has stultified the development of British constitutional law. The result is a deeply ideological, as distinct from oft-heralded pragmatic, constitutional structure that is incapable of confronting the systemic challenges the UK currently faces. By conceptualising a more antagonistic relation between the Crown in Parliament and ‘the People’ by questioning the democratic credentials of the former, this paper contends that the UK constitutional order can be re-invigorated. This re-appraisal, however, also requires the interrogation of the notion of ‘the People’ in the UK constitutional order itself. Part I argues that despite what appear to be substantial constitutional reforms in recent decades, parliamentary sovereignty’s inviolability is stultifying deeper constitutional reform. The result is a constitutional law in ‘crisis’ in search of a paradigmatic revolution. A descriptive — as distinct from normative — account of constituent power is then introduced paving the way for a distinction to be drawn between the possessor of constituent power in a constitutional order and ‘the people’. Constituent power in the context of the UK is then discussed, arguing that parliamentary sovereignty incorporates much what the idea of constituent power does. However, this does not mean that constituent power is vested in ‘the people’; rather, the locus of constituent power in the UK should be more forcefully critiqued from a democratic perspective. By acknowledging this distinction, the sacrosanctity of parliamentary sovereignty can be broached and more effective constitutional reform can follow by embracing this tension between Parliament and ‘the People’.

Czy parlament może zmienić mężczyznę w kobietę? Granice i miejsce zasady supremacji parlamentu w brytyjskim porządku konstytucyjnym wobec europejskich procesów integracyjnych (wybrane problemy)

The political system of the United Kingdom of Great Britain and Northern Ireland is of interest to researchers for several reasons. One of the most important motivations certainly involves the unique construction of its Constitution, the content of which is not formulated in a single legal act of a supreme status. This unwritten Constitution encompasses at least four parts. The most important part is undoubtedly constituted by one of three principles of the political system, namely the principle of the sovereignty (omnipotence) of parliament. This principle, which is regarded as a constitutional principle by some and as a principle above the Constitution by others, constitutes the core of British constitutional law. The topic of this paper is an attempt to indicate the boundaries of this principle in the British constitutional order and to place it in relation to remaining principles. The boundaries of this principle have been considered by British constitutionalists on numerous occasions. Considerations on the relation of this principle to the remaining elements of the Constitution have been the subject of interest for courts of law, including the House of Lords, which used to function as the court of last instance in judicial proceedings prior to the 2005 reform. It is worth emphasizing that even the lords/judges frequently disagreed on the boundaries of the principle and even on whether the principle can be examined by any court. There were also views that the principle is only a virtual construct, and even if it had ever applied to the political system at all, it can no longer be referred to, given contemporary European integration processes. The complicated combination of elements of the British constitution with the presence of the United Kingdom in the structures of the European Council and European Union (preceded by the European Community) have produced a number of interpretations of the principle of the omnipotence of the parliament in the new political reality the UK has found itself in. It was the adoption of the European Communities Act 1972, followed several decades later by the adoption of the European Union Act 2011 that led to the discussion on the construction of the British Constitution and either the approval or rejection of the concept that the Constitution of the United Kingdom with its meta-principle should be interpreted anew.

The Apotheosis of the Rule of Law

AbstractIn 1885 A.V. Dicey identified the rule of law as a key principle of British constitutional law. Presenting it both as a product of English common law method and an expression of classical liberalism, Dicey's concept lingered on into the twentieth century but mainly as a contentious ideological doctrine or simply as a vague rhetorical slogan. During the last fifty years, however, the concept has been revived, recrafted, relocated and reified. The rule of law has become a universal trope, albeit with a range of contestable meanings. This article traces this development, showing how it has been converted into a phrase of considerable political potency not only domestically but also in the international arena.

Brexit and Scotland: Centralism, Federalism or Independence?

The public debate about the consequences of Brexit in Britain follows certain predictable lines of established academic concepts in British constitutional law. This arguably overlooks the important constitutional complications of Brexit, including the position of Scotland in post-Brexit Britain. This article takes the unorthodox approach of focusing on legal and intellectual history rather than British constitutional law, because in this way one obtains a better understanding of the present British constitutional framework in the context of Europe. The discussion is from a continental European viewpoint and through the eyes of a private and commercial lawyer. The completely different understanding of Britain and Europe about the nature of a constitution and the structure of a state becomes more apparent with Britain’s departure from the EU, which may also influence the future national cohesion of the UK itself, particularly the relationship between England and Scotland after Brexit.

BREXIT and business law

The surprising outcome of the referendum on the future membership of the United Kingdom (UK) in the European Union (EU) has given rise to a large number of political speculations and claims. They will have to be realized within the framework of EU law and British constitutional law. This paper is meant to outline that framework and, in particular, the procedure that might lead to BREXIT, infra 1, as well as the options available for the negotiations about the future relations between the EU and the UK, infra 2. Its main thrust will be the legal consequences of BREXIT for the operation of primary and secondary EU law, infra 3–5. A final section will deal with the fate of international treaties concluded by the EU for Britain after BREXIT, infra 5. Particular attention will be given to possible implications for China.

Legislative Sovereignty, Executive Power, and Judicial Review: Comparative Insights from Brexit

In June 2016, participants in a United Kingdom referendum voted to leave the European Union (EU) by a margin of 52% to 48%. The timing and terms of Britain’s exit (commonly known as “Brexit”) are the subject of on-going public and parliamentary debate. But the mechanism by which Brexit is to be formally commenced was clarified by the U.K. Supreme Court at the end of January 2017 in the landmark case R (Miller) v. Secretary of State for Exiting the European Union. The question presented was whether ministers of Theresa May’s government could give notice of the U.K.’s withdrawal from the EU “without prior legislation passed in both Houses of Parliament and assented to by HM The Queen.” The secretary of state argued that the power to withdraw was part of the royal prerogative exercisable by ministers without prior parliamentary action. However, in light of the far-reaching changes to domestic law that would result from terminating EU membership treaties, the court held that withdrawal “must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.” On the one hand, the Miller decision may be seen as a resounding reaffirmation of the principle of parliamentary sovereignty in British constitutional law. Notwithstanding the facts that a majority of voters supported Brexit and that government ministers ordinarily have the power to terminate treaties without legislative approval or judicial review, formal notice of withdrawal under Article 50 of the EU Treaties could not be given unless and until Parliament so agreed. Yet on the other hand, a comparative analysis of Miller also reveals some significant limitations on parliamentary power in the United Kingdom relative to congressional power in the United States—even though Congress is constrained by the Constitution and enjoys no sovereignty over the other branches of government. This Essay explores these limitations on parliamentary power and argues that legislative sovereignty is best understood not as an immutable principle laid down in Britain’s constitutional history, but rather as an evolving ideal that continues to develop to this day.

Brexit, Article 50 and the Contested British Constitution

This article discusses the early stages of the Art 50 TEU process, and those aspects that relate most clearly to British constitutional law. Its overarching theme is that the Brexit process is rendered highly problematic by the lack of any coherent conception of the British Constitution. Different parties settle on interpretations of constitutional law that support their case, but often there is no determinative answer. Three broad issues are examined in order to substantiate this claim: the EU Referendum, the triggering of Article 50, and the Devolution aspect of Brexit. I argue that each of these issues reveals tensions and competing constitutional interpretations that suggest that the British Constitution is ill‐equipped to deal with Brexit.

English constitutional law in Austrian popular legal literature of the nineteenth century

SUMMARY‘Popular legal literature’ is a source that has been widely disregarded by historians as well as legal historians until the present day. The following article provides an outline with basic information about this literary genre and its typology with regard to its motivation, style, contents and authors. After this general overview the article then proceeds to show the nature of the information about English constitutional law that can be evidenced from Austrian popular legal literature books of the nineteenth century, and comparisons are made with other sources.

Sources of one-word terms used in UK and Lithuanian constitutional law acts

The article addresses the issues of formation of legal terminology in Lithuanian and English. The terminology of Lithuanian law started to be formed at the beginning of the 20th century. Its development has been influenced by several political upheavals and has undergone considerable changes. Since new legal terms are constantly created, it is worthwhile to compare and contrast Lithuanian term formation tendencies with term formation traditions in other languages. Contrastive research not only reveals peculiarities of term formation in different languages, but allows researchers to see native terminology in a new light and assessing it more objectively. In this article, the Lithuanian constitutional law terms are compared with the English constitutional law terminology that has a long history dating back to the 13th century. The article analyses the sources and means of formation that have been used for the creation of Lithuanian and UK constitutional law terms and reveals important differences in legal term formation in these two languages. The authors expect that the findings of the research will provide useful information to the developers of Lithuanian legal terminology, as well as to the users of Lithuanian and English legal terms.

To what extent should the Convention of Cabinet Secrecy still be recognised in South African constitutional law?

This note deals with the question whether, under the present-day South African constitutional law, members of the public are entitled to any information held by cabinet (the national executive). This question is considered with specific reference to the law of comparative jurisdictions. Two competing principles must be considered: on the one hand, the constitutional right of access to information held by the state (cabinet information in the present case) and, on the other hand, the convention of cabinet secrecy. The latter originated in English constitutional law, which might be argued to have been inherited by South Africa.

A contextual defense of "comparative constitutional common law"

The relevance of comparative constitutional law, especially in the judicial forum, has been a longstanding source of debate. Even between jurisdictions sharing the same legal tradition, the judicial use of comparative law has been repeatedly criticized on grounds related to the widely differing characteristics of the jurisdictions being compared. This article seeks to challenge these objections when the comparison concerns the constitutional law of Commonwealth countries, with a legal system based on the common law tradition. More specifically, in these common-law-based systems, the use of such a comparative analysis is rooted in a shared legal history and tradition and can be coherently explained by the nature of common law. Historically, the beginnings of modern “comparative common law” can be traced back to the British colonization and the reception of English law in the new British territories. Over time, the practice in the colonies of referring to English and other Commonwealth authorities had become well established to such an extent that it continued even after the political and legal ties between the former colonies and the UK had been severed. One major reason for this ongoing practice is the fact that the independence of almost all of the former colonies had been formalized through the adoption of a constitution on the “Westminster model,” and was thus founded on the general principles of English constitutional law. Altogether, these channels of reception of the common law tradition, and of many of its fundamental rules and principles, have contributed to creating a unique legal context allowing for the development of comparative constitutional common law.

HS2: The First Spike: R (HS2 Action Alliance Ltd) v Secretary of State for Transport; R (Heathrow Hub Ltd) v Secretary of State for Transport; and R (Hillingdon LBC & Others) v Secretary of State for Transport [2014] UKSC 3

The decision of the UK Supreme Court in the HS2 appeal considers some of the leading decisions of the Court of Justice of the EU on both the SEA and EIA Directives. In a number of important respects, the Supreme Court finds that the CJEU’s decisions are unsatisfactory, at least from the point of view of a domestic supreme court which is called on to apply those decisions within the domestic constitutional order. Although the challengers to the HS2 scheme lost the appeal on both the SEA and EIA grounds, the Supreme Court has used the case to make some far-reaching observations on the relationship between EU law and UK constitutional law. These observations make the HS2 decision a landmark in modern British constitutional law.