Question 1

Could Scotland become an independent country? Discuss.

Answer guidance

To answer this question, the student would need to show that they understood the existing constitutional structure of the United Kingdom and something about how it came into being. As the name, United Kingdom, suggests, the country is a union of four countries, England, Scotland, Wales and Ireland, which were once separate.

Scotland entered a voluntary union with England, when they were ruled by the same King in 1603 and finally when their separate Parliaments merged under the Act of Union 1706. England had earlier conquered Wales and Ireland by military force and all four countries became a unitary state, governed by the sovereign Parliament sitting in Westminster.

Due to the rise of nationalist feeling in Scotland during the twentieth century the UK Parliament has gradually granted more powers of self-government back to Scotland. In 1928 the Scottish Office was established with some government powers administered from Edinburgh, headed by a Secretary of State for Scotland, who still sits in and is accountable to the Westminster Parliament. After a failed attempt in 1978, the Scotland Act 1998 restored the Scottish Parliament and gave back many powers of government to that body. The process was extended by the Scotland Act 2012, which included the power for the Scottish Parliament to vary the rate of income tax raised in that country. This process has been called “devolution”, because the legislation, coming, as it does, from the U.K. Parliament, has always been careful to make clear that the U.K. Parliament retains ultimate control.

In 2014 a referendum was held, in Scotland upon whether Scotland should return to being an independent country. The vote was “No” by a majority of 55% to 45%, but because of the strength of support for independence, the Scotland Act 2016, granted Scotland even more powers of self-government, such as over taxation, and accepted that the Scottish Government and Scottish Parliament are permanent parts of the UK Constitution. Although this Act stated that the UK Parliament would not legislate on a devolved matter without the consent of the Scottish Parliament (the Sewel Convention), the Act asserts that the UK Parliament has ultimate legislative supremacy.

Demands for Scottish independence have not diminished, particularly after the referendum on leaving the European Union in 2016. The majority of the UK voted for Leave, but Scotland voted strongly to Remain. Under the Scotland Act 1998, constitutional matters are “reserved” to the UK Parliament, so the UK Parliament would have to grant the power to hold a referendum to the Scottish Parliament, as occurred in 2014. Early in 2020, the UK Prime Minister, Boris Johnson refused to do this. Opinion polls in Scotland show a small majority for independence and the Scottish Nationalist Party Government there continues to press for another referendum. Much may depend upon the May 2021 General Election in Scotland and whether the SNP retain their large majority. Some Scots have argued for holding a referendum without the permission of the UK Parliament, but the Supreme Court ruled that the UK Parliament had supremacy over the Scots Parliament in R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5. Even if the UK Parliament could be persuaded to permit another referendum, there would be many issues to be negotiated between the UK and Scottish governments before independence could proceed. Scotland could retain the same Head of State as England, as Queen Elizabeth II is the Head of State of several other Commonwealth countries, such as Australia and New Zealand, already. It is not impossible to share the same currency, the pound, though this might conflict with a major Scottish independence aim, to join the European Union. If Scotland did, it is likely that Scotland would have to accept the euro as its currency and join the Schengen agreement on relaxing frontier controls. It is not certain that Scotland would be able to join the EU, as Article 49 of the Treaty on European Union requires all 27 existing Member States to agree and some, like Spain, are opposed to the idea that a part of an established country can opt for independence.

Question 2

“In a variety of important ways, ideas of the separation of powers have shaped constitutional arrangements and influenced our constitutional thinking and continue to do so. The separation in the British constitution, though not absolute, ought not to be lightly dismissed.”

• Colin Munro ‘Studies in Constitutional Law” page 332 (Second Edition Butterworths 1999)

Answer guidance

This is, essentially, the same question as Question 4 in the book: “Explain what is meant by the separation of powers. To what extent is it an important element in the constitutional arrangements of the UK?” An answer to Munro’s quotation would point out that the best-known version of the separation of powers theory, that of Montesquieu, was not English and that the UK constitution is not a written constitution explicitly modelled on that theory, like the constitutions of the USA and France. Montesquieu argued that to prevent tyranny, no one person or body should hold all the powers of government. For him, government performed three main functions: the legislative or law-making, the executive or law-applying and the judicial or law-enforcing function. Separate persons or bodies should carry out these functions. In the USA the Congress is the legislature, the executive is the President and the Judiciary is the Supreme Court. These are separate institutions with separate personnel. Montesquieu’s somewhat idealised theory was never applied to Britain, but it has had a great influence on the UK constitution.

The legislature, Parliament, which has supreme authority to make the law, consists of the elected House of Commons and the nominated House of Lords. Legally, the executive, which is the Prime Minister and their ministers, are appointed by the Queen, but by convention they are drawn from the political party which has a majority in Parliament. This looks like fusion rather than separation of powers, yet in English constitutional theory, the executive and Parliament are distinct and fulfil different constitutional roles. Parliament does not always agree to pass the legislation that the Executive wants, as can be seen from the long struggle to leave the EU. Parliament also has the very important function of holding Ministers to account and ensuring that they do not exceed their powers. This was recognised as a fundamental constitutional principle in R (Miller) v Prime Minister [2019] UKSC 41.

The UK judiciary have always asserted their independence from both the executive and legislature and their freedom to pronounce on the major constitutional issues of the day. This separation was strengthened by the Constitutional Reform Act 2005, which established the Supreme Court and diminished the role of the Lord Chancellor. Judges have a particularly English interpretation of the separation of powers: the executive cannot tell them what to do, but they accept the supremacy of the legislature, as asserted by Lord Diplock in Duport Steel v Sirs [1980] 1 WLR 142. Indeed, the courts see their role as vital in ensuring the separation of powers. In R (Miller) v Prime Minister [2019] UKSC 41, the Supreme Court held that the Executive could not prorogue Parliament, because that would prevent it from carrying out its vital role of holding Ministers to account and passing or not passing legislation.

The quotation is the concluding words of Munro’s chapter on the separation of powers: the UK does not have a classical separation of powers but has its own version of the theory.

Question 3

“Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. ”

• R (Miller) v Prime Minister [2019] UKSC 41

Discuss.

Answer guidance

The quotation states that the UK does not have a written constitution, in the sense of a single document with enhanced legal status. There has not been an occasion, such as independence or revolution, when such a document could be adopted. Instead, it is claimed that the UK does have a constitution, but it has developed over time and has multiple sources. In your answer you would need to explain what a constitution is and what its purpose is: to state who has the power to govern and grant them legitimacy, to define the structure of government in that country, to restrain its power, and to protect the rights of the individual.

Most countries have a written constitution, which is a document having ‘a special legal sanctity’ and superior status to the ordinary law. The UK does not have this, but instead has a mixture of sources where the constitution can be found. The answer should describe these sources, but criticise and analyse them. Acts of Parliament, such as the European Communities Act 1972 form an important source of the constitution, but there is nothing to distinguish them from any other Act of Parliament. They can be repealed, just like any other Act of Parliament as indeed the European Communities Act 1972 was by the European Union (Withdrawal) Act 2018.

Cases, or common law, also establish many important constitutional principles, but there is no special Constitutional Court, as there is in other countries, to decide cases of constitutional importance. Nevertheless, the Supreme Court, established in 2005, now often decides such cases, as seen in the decision from which the quotation in the question is drawn. The royal prerogative is ancient common law, but still an important source of government power. It includes important powers such as the right to declare war and conclude international agreements. It is the remains of royal power, but is not clearly defined, unless its use is challenged in a court case such as R (Bancoult (No 2) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35.

Some of the most important parts of the constitution are not law at all. Conventions, which are the understandings, habits and practices that have evolved over the centuries, regulate many important areas, such as the powers of the Prime Minister. The concern here is that there is no obvious means of enforcing these conventions and there is some doubt about what these ‘unwritten rules’ actually say. The answer to this question would investigate conventions in some detail.

Constitutional theorists have tried to compensate for the lack of a written constitution by devising various theories. Legal constitutionalists would probably like to see a written constitution for the UK, but would meanwhile assert that in any case more and more of the constitution is being put into statutory form as seen in the Constitutional Reform Act 2005. The Human Rights Act 1998 allows judges to state that Acts of Parliament are incompatible with rights and has encouraged them to rediscover basic rights embedded in the common law, such as the right of access to the courts: R (Unison) v Lord Chancellor [2017] UKSC 51. The case the quotation is taken from also shows the courts are willing to lay down a general constitutional principle of accountability to Parliament.

Even legal constitutionalists would admit that no document can cover or foresee every constitutional problem that might arise. Political constitutionalists put more stress on a democratically elected Parliament and an open and accountable Government. Rights can be enforced and government restrained through political rather than judicial processes. 

The conclusion to this essay needs to assess whether, despite the seeming vagueness and chaotic structure of British constitutional arrangements, there is still a working constitution. Is there a functioning government and more importantly, is it restrained and controlled by these arrangements?

Question 4

Conventions have been defined as “rules of constitutional behaviour which are considered to be binding by or upon those who operate the Constitution, but are not enforced by the lower courts”.

• Marshall and Moodie, “Some Problems of the Constitution.”

Discuss.

Answer guidance

The essay would need to expand upon this definition by explaining what conventions are: understandings, habits or practices, which regulate the conduct of the government. They have not usually been regarded as laws and so cannot be enforced by the courts.

It would be a good idea to give some examples of conventions and how they have evolved over the years. Two useful areas to explore would be how the powers of the Queen are now exercised by the Prime Minister and how the standards of behaviour expected of government ministers, known as ministerial responsibility, have changed over the years. The Queen legally retains a number of powers known as the royal prerogative. The practice, or convention, is that they are exercised in her name by the Prime Minister or other government ministers. These powers include controversial issues such as the right to take military action and the prorogation of Parliament (see R (Miller) v Prime Minister [2019] UKSC 41).

Writers such as Jennings and Dicey have tried to explain how conventions are enforced. Dicey argued that, if a convention was broken, it would eventually lead to a legal problem. For example, if Parliament was not summoned, vital laws, such as those to raise tax or spend money, could not be passed. It is hard to see, though, that this legal sanction would apply to all breaches of convention. The more general view is that conventions are enforced perhaps by a constitutional superior, such as a Prime Minister asking a minister to resign, or by the will of the electorate at an Election, or just by a feeling that to break a convention is wrong. That is why conventions have been referred to as political morality.

The courts cannot enforce conventions, but they do take account of their existence when a case reaches a high-level court and the existence of a convention may influence the legal decision. An example of this would be Attorney-General v Jonathan Cape [1976] QB 752, where conventions on Cabinet secrecy influenced the enforcement of the law on breach of confidence. Another useful example would be Re Amendment of the Constitution of Canada [1982] 125 DLR (3d) 1, where the convention that Canadian provinces must consent to constitutional change was explored. R (Miller) v Prime Minister [2019] UKSC 41 elevated the convention that the government was accountable to Parliament into a fundamental constitutional principle, which could be enforced by the Supreme Court. In contrast, R (Miller) v Secretary of State for Exiting the EU [2017] UKSC 5 declined to enforce the Sewel convention. Jennings long ago argued that conventions were as good as laws, and we might conclude from the latter Miller case that at least some conventions are.

The conclusion of the essay would look at whether conventions were a good part of the constitution. Even countries with written constitutions, such as the Canada example above, use conventions to fill in the gaps of their written constitution. What makes the UK exceptional is that, because there is no written constitution, a lot of important parts of the constitution are governed solely by convention. The powers of the Prime Minister, mentioned earlier, are an excellent example.

 Are conventions too hard to define and too hard to enforce to be satisfactory, or are they flexible and evolutionary enough to allow the constitution to develop and modernise? Use examples of actual conventions to support your arguments.

Question 5

Explain what is meant by the rule of law. Consider whether the rule of law is still relevant to the modern British constitution.

Discuss.

Answer guidance

A useful starting point is to compare this question with the question of the rule of law that is already in the book.

“In so far as Dicey’s general statement of the rule of law may be taken to involve the existence in the English constitution of certain principles almost amounting to fundamental laws, his doctrine is logically inconsistent with the legislative supremacy of Parliament.”

You could get away with writing exactly the same answer to our new question, but if you wanted to score good marks, you would write a different answer as this question does not just refer to Dicey’s version of the rule of law. It would, however, still be worthwhile to explain Dicey’s classic theory of the rule of law. All government actions must be authorised by law. There should be equality before the law and that the UK constitution already respects individual liberty and so there is no need for a bill of rights.

The criticism in the old question; that Parliament can legislate in a way that is contrary to the rule of law is still valid. Other criticisms, that the rule of law is meaningless, because the government has many vague and unaccountable powers, could be added.

There is also the opportunity to mention some of the other theories on how the rule of law works. You may have come across these other theories in your studies. Joseph Raz and P.P. Craig have come up with the idea that the law must be clear, certain and understandable to the people. An obvious criticism of this approach is that a law could be very clear and understandable, but totally unjust. In response to this, others, such as Professor Lon Fuller, have tried to insist that the rule of law requires that the law should be just and fair. Ronald Dworkin stressed the idea that the rule of law meant respecting individual rights. A senior judge, Lord Bingham, wrote a very influential book, The Rule of Law, in 2010, which tried to combine the different theories on the rule of law. He insisted that it was important that the law should respect the international and European standards of human rights.

Although the rule of law is not binding on a government in the sense that a written constitution is, the ideas behind it do influence the behaviour of people in government such as government ministers. Particularly since the Human Rights Act 1998 was passed, judges have taken the message of Lord Bingham to heart and stood up for the fair treatment of unpopular defendants, such as alleged terrorists in cases such as A v Secretary of State for the Home Department (No 2) [2006] 1 All ER 575. They have also rediscovered basic rights from the Common Law tradition, such as no retrospective laws in R v Home Secretary ex parte Pierson [1998] AC 539, and the importance of unfettered access to the courts in R (Unison) v Lord Chancellor [2017] UKSC 51. Nor would they allow a government minister to overrule the judgment of a court: R (Evans) v Attorney-General [2015] UKSC 21.

In conclusion, the Rule of Law seems alive and well, but not quite in the shape that Dicey imagined.