The House of Lords Constitution Committee in its 6th Report, published 11 July 2007 (referred to in class) examined the changing constitutional landscape in great detail (“the Report”). The criteria used in the Report for assessing the changing constitutional landscape are the rule of law and the independence of the judiciary. The introduction to the Report provides a useful summary of these points, together with questions regarding the impact of the Constitutional Reform Act 2005 and the creation of the Ministry of Justice on the UK’s constitutional arrangements.

The link below provides further links to the introduction and all sections of the Report. You might also find useful the appendices, which include papers from eminent professors  (including Professor Bradley), in particular, appendices 3-5; and evidence submitted by the Lord Chief Justice at appendix 8.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm

http://www.thelawyer.com/cgi-bin/item.cgi?id=128615  

The Lord Chief Justice Lord Phillips has called on the government to stay away from the selection of judges in the wake of ‘The Governance of Britain’ green paper published by the Ministry of Justice. Phillips claims that the Blair administration’s shake-up of the justice system had important implications for the independence of the judiciary.  

This ties into public law and the issue of keeping judges/judicial system as a unbiased third party that should interpret statues and Acts of Parliaments as they see fit. This occurs when ambiguity exists in certain statutes. The Rule of Law, as we have seen, claims that no governmental figure shall be above the law. Keeping judges as unbiased mediators of the law helps this – Dicey claimed ‘equality before the law – equal subjection of all classes to the ordinary law.’ It is vital that the courts serve as an unbiased body independent of the legislature which made the law, and that they act independently of the executive in interpreting the meaning of laws.

Phillips came out explicitly against any suggestion of electing judges, putting himself in opposition to the green paper published by the MoJ this year.  I’m only aware of one Commonwealth country where parliament is involved in judicial appointments, and that is Mozambique. I, for one, can see no need for such an innovation in the UK.” 

Also touches on separation of power (particularly question 5 of tutorial – sep of power )

By Tariq Teja 

On 25 October 2007, Gordon Brown set out his plans to write the next chapter in the story of British civil liberties and pledged his commitment to a British Bill of Rights in a speech at the University of Westminister.

Mr Brown said that the British Bill of Rights would “entrench and enhance” individual freedoms.  Yet on the other hand, the Prime Minister stated that the bill would set out the responsibilities “that flow from British citizenship”.  He did not rule out controversial plans for ID cards nor the extension of the holding of terrorist suspects beyond 28 days but said that the latter would be subject to scrutiny.

See a summary of the meaning of a written constitution in the UK – as well as links to a summary of the Prime Minister’s speech on liberty and other documents at:

http://www.politics.co.uk/issue-briefs/domestic-policy/constitution/written-constitution/written-constitution-$366652.htm

This follows the publication on 3 July 07 of the Green Paper, “The Governance of Britain”. Gordon Brown said that the Green Paper sets out for  “a new British constitutional settlement that entrusts more power to parliament and the British people”. This “routemap” (rather than a “final blueprint”) concerns the shifting of power from the executive to Parliament ( for example through limits on the exercise of prerogative powers such as the declaration of war), and reform of public appointments and the role of the Attorney General etc.

See summary at:

http://politics.guardian.co.uk/constitution/story/0,,2117920,00.html

Governance of Britain Green Paper can be found at:

http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf

 Related documents on Ministry of Justice Website:

http://www.justice.gov.uk/publications/governanceofbritain.htm

  What are constitutional conventions?  

See p 20 Bradley & Ewing. There are a great number of different descriptions and meanings attributed to conventions, or in Dicey’s words, “constitutional conventions”.  Bradley & Ewing state that “constitutional conventions” are those rules and principles which “do not have the force of law but are of great importance in maintaining constitutional government”. 

If conventions do not attain the force of law, in what sense are they binding? 

This question is considered in your course reading, but also at great length in an article by Joseph Jaconelli in the Cambridge Law Journal 64(1), March 2005, pp. 149-176 (available from the KCL electronic library – you will have to use your ATHENS login).   http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=64&issueId=01 

Jaconelli argues that conventions are normative, in the sense that they prescribe, rather than merely describe behaviour. Conventions may be said to be binding on those to whom they apply. Remember the three part test set out by Sir Ivor Jennings which focuses on “precedent”, “actors” and the “reason for a rule”. Jaconelli uses this test as an underlying framework for his analysis and argues that conventions are social rules which are not legally enforceable in the courts. Any degree of enforceability or sense of obligation is placed on a non-legal basis. You might find useful the analysis of AG v Jonathan Cape (at pp 159-161) which was on your reading list.

Lord Goldsmith QC the Attorney General in an interview with Sky News on October 8 2006 stated that the idea of a written constitution is “something we seriously ought to consider, there are strong reasons in principle why we ought to consider doing that”.

The relevant extract from the article is found below, but the full transcript is available at: http://www.skynewstranscripts.co.uk/transcript.asp?id=275 

The article by Matt Chorley in the Guardian also sets out the Attorney General’s position.http://politics.guardian.co.uk/homeaffairs/story/0,,1890995,00.html 

 “…Boulton:          If we are about standing up and values wouldn’t it therefore be a good idea to take a leaf out of David Cameron’s book and rather than rely on a kind of compromise historic statement coming out of Europe to actually have a U.K. bill of rights so that everyone would know exactly what their rights were and the new supreme court could interpret it? 

Goldsmith:      I think he is quite wrong about what he has said and I notice that he’s repeated again what he said before even though some of his own top colleagues described it as xenophobic legal nonsense.  There’s a different question about whether having now got effectively a bill of rights or the human rights act we ought to think about whether we should have a written constitution to deal with other aspects of that.  That I think is another debate and that’s not what he’s talking about -

Boulton:          - You sound as if you’re interested in that.;

Goldsmith:      I think that is something that we seriously ought to consider, there are strong reasons in principle why we ought to consider doing that.”