British Constitutional Law Research Articles

Application of the Rule of Law: The Struggle Regarding the Protection of Fundamental Rights in British Constitutional Law

This short article tries to unravel the enigmatic character of the rule of law and argues the meaning given by A.V. Dicey is not sufficient in modern times. A meaning which emphasizes that law is inherent to protecting fundamental rights is preferred. The application of the rule of law will be illustrated by assessing how these fundamental rights are protected. With enacting the Human Rights Act in the UK, a struggle has arisen between the two principles making up British Constitutionalism. This debate will be highlighted, together with its’ profound significance for the future role the rule of law will play in the common law Constitution.

Constitutionalism, counterterrorism, and the courts: Changes in the British constitutional landscape

The aim of this paper is to show that in recent times (and certainly since the enactment of the U.K. Human Rights Act 1998) there has been a subtle but nonetheless significant change in British constitutional law. Using case law dealing with questions of national security post-9/11, this paper argues that there has been a “constitutional shift” from a completely hands-off judicial approach (as embodied in the doctrine of nonjusticiability) to a more hands-on approach (as embodied in the idea of a variable intensity of review combined with a degree of deference).

II. INTERNATIONAL LAW, THE UNITED KINGDOM AND DECISIONS TO DEPLOY TROOPS OVERSEAS

This short article considers the two primary legal frameworks that can operate to control decisions by a State, in this case the UK, to deploy troops to conflict or post-conflict zones—British constitutional law and international law, and how they have both been thrown into sharp relief by the continuing debate about the possible adoption by the House of Commons of a non-statutory war powers resolution.

A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States

This Article examines legislative attempts to preclude judicial review through statutory provisions that purport to strip courts of their jurisdiction. At bottom, these “ouster clauses” raise serious questions about relationships among organs of government, judicial independence, and constitutionalism. By contrasting the basic principle of English constitutional law, parliamentary sovereignty, with a fundamental structural feature of the American constitutional system, separation of powers, the Article begins by noting that it might seem unremarkable that the sovereign British Parliament would, on occasion, attempt legislatively to oust the jurisdiction of English courts. Correspondingly, the Article notes that it might seem unlikely that the coequal American Congress would ever attempt legislatively to preclude judicial review of federal claims in federal courts. After addressing the distinction between statutory cases (where one might expect to find more judicial deference to legislative ouster) and constitutional cases (where one might not), the Article notes that, somewhat surprisingly, British courts seem loath to permit ouster even in statutory cases while American courts largely tolerate this practice. However, in constitutional cases, both the English courts and the American courts seem unwilling to relinquish their jurisdiction and institutional position in the face of legislative pressure. To explain this unified response, despite apparent or alleged constitutional differences, the Article develops the connection between the fundamental right of access to the courts in England and a similar, but largely unstated, recognition of this right in the United States. The Article challenges commonly offered explanations based on a written I unwritten constitution, assertions about legislative supremacy, and differences in theoretical justification for and exercise of judicial review. Instead, the Article attempts to explore the authentic nature of both nations' overarching commitments to the rule of law and judicial autonomy through the work of contemporary scholars and judicial decisions.

Vinculum Fidei: The Tempest and the Law of Allegiance

In English constitutional law, Calvin’s Case (1608) laid down a new, deeply affective basis of personal allegiance; the bond between sovereign and subject was now to be understood in personal, embodied terms as a tie of obligation and love between natural men. This essay argues that Shakespeare’s The Tempest is a work of hypothetical constitutional commentary designed to illustrate the fragility and awkwardness of this new norm at home and abroad; it is, more over, intended to rebuke the theoretical ambitions of James I. The late Shakespeare, in this account, is not a political quietist but a skeptical constitutional theorist who in his play outlines a proleptic vision of the affective costs of personal sovereignty.

History in the Law of the Constitution

This article addresses the diminution of historical understanding in English constitutional law by reconsidering Dicey's approach to history in his foundational work. It argues that Dicey's approach was inconsistent and unconvincing – separating a historical view of an evolving constitution from a legal view, discounting history's legal significance and nonetheless repeatedly evoking a whig history to enhance the appeal of the constitution's rules and principles. It recalls the features or deficiencies of whig history, famously characterised by Herbert Butterfield from a modern historical perspective. To Butterfield's characterisation it adds an elaboration on their constitutional significance and a neglected comparative dimension. From those features, it develops, in conclusion, methodological suggestions for a history that might yet serve constitutional legal purposes.

Not Yet Dead: Wright v Paton Farrell and Advocates' Immunity in Scotland

basis, and the use of that law to attempt to stop the state achieving its foreign policy objectives. For the latter, as Lord Hoffmann suggests, the courts or ballot box are the reasonable and legitimate avenues which those who are disgruntled with British foreign policy should take. Third, while it does not violate the principle of nullum crimen sine lege for the reasons outlined above, it does deny the narrow interpretation accepted by the House which was based upon the lex scripta requirement. This might seem, for the reasons expressed by Berman, unjust against standards of procedural fairness. The third option, which was the House of Lords' choice, was to hold that the source of new criminal law (since 1973) must be legislation. But this, as has been seen, required the jettisoning of either the principle of incorporation or automatic transformation whereby customary international law springs up as valid English law from the point the norm coalesces in state practice. In conclusion, then, it could be said that Lord Hoffmann is wrong to say that the approach they took and the non-justiciability approach 'may be simply another way of putting the same point.' By taking the non-justiciability line, the House would have avoided the very difficult questions which they have, to their credit, dealt with in this Opinion. The problem is that their answer meant that a well-established norm in English constitutional law which has for many been a mark of this 'civilized nation' for so long, had to be discarded.

The Doctrine of Parliamentary Sovereignty in Comparative Perspective

For the German-trained lawyer, the process of coming to terms with the constitutional law of the United Kingdom can be disconcerting. This disorientation arises principally because the study of constitutional law on the other side of the English Channel seems to lack an appropriate object to deal with. State order in the United Kingdom is not based on a definitive constitutional document created at a particular point in history which would be in any way comparable to the German constitutional document, the Basic Law (Grundgesetz). In spite of this, as Helmut Weber so aptly noted in a talk before the Centre for British Studies of Berlin's Humboldt University, “British textbooks on constitutional law […] are no less numerous and no less comprehensive than German textbooks onVerfassungsrecht”. This observation is not in the least surprising. Even though it may be disputed that a UK constitution exists in the narrower and more common continental European sense of the term, it cannot be denied that the learned discourse forming the body of constitutional scholarship in the United Kingdom is regarded by jurists not only in Europe, but in all corners of the globe, as an important standard for the scholarly examination of their own constitutional systems. This is certainly due in large measure not only to the centuries-old traditions of English constitutional law, but also to its striking intellectual depth and variety.

Allies or Subversives? The Judiciary and Democracy

In the search for democracy, are judges allies or subversives? Until very recently, British constitutional law appeared to present a relatively straightforward answer to this perennial dilemma: judges are only allies if their power is clearly subordinate to that of Parliament. In terms of constitutional theory, this faith in the political process and corresponding distrust of the judiciary is expressed through the principle of parliamentary sovereignty. However, the imminent enactment of a Human Rights Act in Britain compels a reconsideration of this response. It is true that the judiciary has always played a significant role in law-making through the common law and statutory interpretation. It is true, too, that non-constitutional judicial review has developed vigorously in the past few decades. Yet it has always been possible to assert, not least by the judiciary, that law-making of this sort is subordinate to parliamentary law-making and is justifiable by and legitimated in terms of parliamentary intent. Parliamentary sovereignty has, of course, been challenged explicitly by membership of the European Union. Faced with the confident assertion by European Community institutions of the sovereignty of European Community law, the judiciary has gradually shifted its allegiance from Parliament and acknowledged the supremacy of EC law in its sphere of operation. This shift of allegiance is revolutionary in one way. Nevertheless, judicial law-making remains subordinate, although to a differently constituted legislature.

Racial Equality and ‘1992’

Underlying all British discussions of the European Community are two major difficulties. One is a near-universal British ignorance of the Community's character, structure and purposes. The other, which is particularly important in discussions of rights and opportunities, is the large difference between British constitutional law, legal habits of thought and political history and the political and constitutional norms of Continental countries. Of course the latter differ among themselves, but there is still a marked difference between British habits of thought on these matters and Continental thinking in general. Because Britain came late into it, the Community's laws and structures are entirely of Continental formation, and as a result there are continual misunderstandings between disputants from Britain and from other countries about the very bases of their discussions. Add to these difficulties a dash of British insularity, and a taste of conviction that British ways are best, and one has a potent recipe for getting nowhere. It is only over the last two years, at most, that ethnic minorities in Britain have become concerned about the consequences for them of British membership of the Community. Like others in Britain, they took little notice of'Europe', as the EC is frequently and misleadingly called, until government propaganda about the single market and 1992 became pervasive. The first reaction was alarm. In the seventies, there was already resentment that Britain had cut old Commonwealth ties for the sake of closer ties with the EC. Now, with talk of a single external border round the Community and a common visa policy, there were fears of a white man's Fortress Europe in which oppression of blacks would worsen and from which blacks might be forcibly expelled. Another anxiety is that blacks in European countries have little or no protection against racial discrimination. There are legal bans on discrimination but, except in the Netherlands, the machinery for enforcing such bans is thoroughly unsatisfactory. Moreover, the British Race Relations Act which protects everyone in the jurisdiction is very different from constitutional and legal guarantees in certain other

The Judicial Bookshelf

The Judicial Bookshelf D. Grier Stephenson, Jr. As scholars assess developments in Ameri­ can constitutional government a halfcenturyor even a full century hence, theywill look back to the extraordinarily rich and varied writings of those who preceded them. This is the opportu­ nity afforded today’s students as well. One’s insights into a particular period are enhanced by those who wrote at another time. ConsiderPopularGovernment, a collection of four essays written barely more than a cen­ turyagobytheEnglish legalhistorianSirHenry Sumner Maine,1 whowrote approximatelyhalf­ way between establishment of government under the Constitution and our own time. For the contemporary reader who looks at the volume from a distance of 106 years, his treatment of thejudiciary contains both the familiar and the unfamiliar-the Court of today as well as the Court of yesterday. Then as now, one sees an institution beset by the tension posed in the American political system between popular sov­ ereignty and limited government, between “governmentbythepeople” and legalrestraints on the people’s government. The tension is the hallmark of a government founded on both the consent ofthe governed and the expectation, in Justice Jackson’s words, “that we submit our­ selves to rulers only if under rules.”2 In Maine’s British-based observations on the American political system fifteen years before the turn of the twentieth century, the Supreme Court “was not only a most interesting but a virtuallyunique creation ofthe founders ofthe Constitution.” In his view, the division of pol­ icy-makingauthoritybetweenthePresidentand Congress, the concept ofanationalgovernment of limited powers, and the existence of the statesmeantthat thepolitical systemneeded an institution both to expound the Constitution and to clarifytheboundariesofpoliticalauthor­ ity. For Maine, judicial reviewwas essential to American government. “The success of this experiment [judicialreview] hasblindedmen to its novelty,” Maine wrote. “There is no exact precedent for it, either in the ancient or in the modern world.” The Court’s constitutional role was the product of “the unsatisfactory condition of English Constitutional law [at the time of the American Revolution], and of its manygrave and dangerous uncertainties.” The Framerswantedto avoid“asystemunderwhich legal questions were debated with the utmost acrimony, but hardly ever solved....”3 Yet there are sharp contrasts between the Court Maine knew and the Court of today. Maine wrote at a time when the Court was chiefly a supreme court of errors. Constitu­ tional issues still accounted for a small part of the Court’sbusiness. In 1875, for example, they occupied only about six percent of the docket, compared to about half the docket a century later. It was not until sixyears after publication of Popular Government that Congress created the Circuit Courts ofAppeals in 1891, the first true and lasting intermediate appellate bodies in the federal judicial system. With introduc­ tionofsomecertiorarijurisdiction (tobegreatly expanded in 1925) and a soon-to-be-enlarged corpus offederal legislation (being in Congress in Maine’s day was very much a part timejob), a different role for the Court could emerge. In contrast to the docket of the nineteenth cen­ tury, public law in both its constitutional and statutoryformsnowconsumes the Court’s time. Moving beyond its dispute-resolution role, the Court has become mainly a maker of public policy for uniform application across the na­ tion. Maine also wrote before a sizeable fraction of the constitutional cases which did arise in­ volved the Bill of Rights. The dominant con­ ception of the Bill of Rights in the late nine­ teenth century may well have had more in common with the late eighteenth century than 106 JOURNAL 1991 with the late twentieth century. For Maine, the BillofRights consisted of “a certain number of amendments on comparatively unimportant points.”4 Although he does not elaborate, one suspects that by “comparatively unimportant” he meant unimportantjudicially—that they had not become a common source of federal litiga­ tion. That could not happen to any significant degree without two occurrences: first, the pro­ visions of the Bill of Rights would have to be applied to the states through the Fourteenth Amendment (given the large place, relative to the national government, state and local gov­ ernmentshad inthe lives oftheir citizens). This extension had not yet begun in 1885. Indeed, only the year before in Hurtado v. California5...

The Transkeian constitution: manifestation of diffusion and rediffusion of constitutional technology or Westminster transplanted?

Abstract With the written constitution now nearly universal, it's effectiveness is gravely doubted. Today the state as an institution stands supreme and although the function of a constitution in the life of the state is uncertain, it is regarded as an almost inseparable part thereof. Constitution and constitutionalism has parted, disowning numerous westernised institutional traditions. The Transkei constitution is to a large extent a borrowed one, and therefore it should be seen against the background of British and South African Constitutional law and theory. However, the failure of Westminster systems in the rest of Africa cannot be ignored. The constitutional development of Transkei differs considerably from that of colonies elsewhere in Africa. The phenomenon of constitutional autochthony which their independence brought to the fore, poses the question whether this also obtains in the birth of a new state such as Transkei. Whether measured in terms of legal continuity in the constitution‐making proce...

Legal Foundation for Regulation of Land Development in Canada — with an Emphasis on Quebec

Abstract The Canadian constitution is not a single document, nor is it entirely written. The distribution of legislative powers between the federal Parliament and the provincial legislatures in contained in the British North America Act of 1867 and amendments.1 Guarantees of individual rights and liberties analogous to those found in the U.S. Bill of Rights, on the other hand, rest either on the unwritten rules of English constitutional law or on ordinary statute law. The Canadian Bill of Rights,2 which is an ordinary statute of the Canadian Parliament taking precedence nonetheless over subsequent federal enactments, has not added any new rules with respect to procedural due process in expropriation matters to those already contained in the federal Expropriation Act.

The Unservile State: Essays in Liberty and Welfare. Edited by George Watson. (New York: The Macmillan Company, 1957. Pp. 315. $4.75.)Democracy in England. By Diana Spearman. (New York: The Macmillan Co., 1957. Pp. 225. $6.00.)Significant Cases in British Constitutional Law. Edited by C. Gordon Post. (New York: The Liberal Arts Press, 1957. Pp. 245. $1.25.).Government in Great Britain, the Empire,

Previous articleNext article No AccessBook Reviews George Watson Diana Spearman C. Gordon Post The Unservile State: Essays in Liberty and Welfare. George Watson Democracy in England. Diana Spearman Significant Cases in British Constitutional Law. C. Gordon Post Government in Great Britain, the Empire, and the Commonwealth. L. W. White , W. D. Hussey Arthur B. DuganArthur B. Dugan Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Politics Volume 20, Number 3Aug., 1958 Sponsored by the Southern Political Science Association Article DOIhttps://doi.org/10.1017/S0022381600033788 Views: 3Total views on this site PDF download Crossref reports no articles citing this article.

The Interpretation of the British North America Act

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.

Treaty-Making Procedure in the United Kingdom

The power to conclude and ratify treaties in the United Kingdom is one of the few remaining prerogatives of the crown. We may search in vain for constitutional laws, provisions, and decrees specifying the required formalities incident to the negotiation, conclusion, and ratification of treaties by Great Britain, because these matters are not governed by any act of Parliament or by any written regulations. British constitutional law on these points has not been embodied in statute and rests upon the common law alone. Thus there is no express definition of the treaty-making power and no reference to the authority by whom the treaty-making power may be exercised. Nevertheless, it may be said that under British constitutional law, which in this instance is common law, the authority to make treaties is vested absolutely in the crown as the unquestioned prerogative of sovereignty.

Ministers of the Crown and the British Constitution

Notwithstanding the vital importance of the cabinet, it has been one of the anomalies of British government that this institution has heretofore been unknown to English constitutional law. Writers have said correctly that “neither Parliament nor the courts have provided for the cabinet and the prime minister. The whole system of cabinet government is founded not on laws but on practices …” However, this view can no longer be held. In the session of Parliament concluded recently, an act was passed which laid down new principles pertaining to the executive. The cabinet, the prime minister, and the ministers of the crown have at last been recognized by statute and have been given a status in British constitutional law.

Some Recent Aspects of British Constitutional Law

Some Recent Aspects of British Constitutional Law

<sc>An Introduction to British Constitutional Law</sc> and <sc>National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations</sc>

Journal Article An Introduction to British Constitutional Law and National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations Get access 56. An Introduction to British Constitutional Law. By Arthur Berriedale Keith. 1931. (London: Humphrey Milford. 8vo. xii + 243 pp. 7s. 6d.)57. National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations. By K.C. Hector Hughes 1931. (London: P. S. King & Son. 8vo. xvi + 184 pp. 9s.) H. A. Smith H. A. Smith Search for other works by this author on: Oxford Academic Google Scholar International Affairs, Volume 11, Issue 1, January 1932, Pages 123–124, https://doi.org/10.2307/3016140 Published: 01 January 1932

<sc>An Introduction to British Constitutional Law</sc> and <sc>National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations</sc>

<sc>An Introduction to British Constitutional Law</sc> and <sc>National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations</sc>