PowerPoint Presentation

The UKs (unusual) constitutionDr Mark ElliottReader in Public Law, University of CambridgeDirector of Studies in Law, St Catharines CollegeDo we have a constitution?

Unlike every other European country, we have no written constitution and we have parliamentary sovereignty. Indeed, it may be said with considerable force that we have no constitution as such at all, merely constitutional conventions, and that it is as a consequence of this that we have parliamentary sovereignty.

Cambridge Freshfields Annual Lecture 2014Lord NeubergerPresident, UK Supreme CourtIs Lord Neuberger right?UK has a constitutionButAllocates powerRelationships within stateRelationships with stateEstablishes accountabilityAn unusual constitutionLacks two normal characteristicsThe right to voteRepresentation of the People Act 1983, s 3(1)A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.The principle of Parliamentary sovereignty means that Parliament has the right to make or unmake any law whatever; and that no person or body is recognised as having a right to override or set aside the legislation of Parliament. Professor A V DiceyTwo unusual featuresUnwrittenFlatNo text that we call the ConstitutionNo constitutional momentNon-hierarchical No special constitutional lawHierarchical constitutionsThe ConstitutionOrdinary lawConstitution as fundamental lawOrdinary law invalid if unconstitutionalConstitution is a fixture (unless amended) Flat constitutionsLawConstitutional Law All laws are equalEase of constitutional amendmentNo values/rights are sacrosanct

Can Parliament do exactly as it pleases?Political restraintsLegal restraints? Political process will often uphold fundamental valuesBut what if it doesnt (e.g. marginalised minorities)?European Convention on Human RightsHuman Rights Act 1998The right to voteEuropean Convention on Human Rights, Art 1, Protocol 1The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.Hirst v UK (No 2) (ECtHR Grand Chamber)Blanket ban incompatible with Art 1, Protocol 1The Human Rights Act 1998Section 3Section 4Courts must interpret legislation compatibly with human rights where possibleIf not, they can issue a declaration of incompatibilitySmith v ScottDeclarations of incompatibility... a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given.Human Rights Act 1998, s 4(6)Law can be amended

But HRA imposes no duty

What next?Article 1 ECHRThe High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms set out in Section I of this Convention.Article 46 ECHRThe High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.Comply? Or leave?Some conclusionsClaimNo constitutionUnwritten constitutionFlat constitutionRealityA constitutionConstitutional lawsUK bound by international lawpubliclawforeveryone.wordpress.comtwitter.com/DrMarkElliott