2.2.3 Sources of the Constitution Lecture – Hands on Examples
The following scenario aims to test your knowledge of the Sources of the UK Constitution. The answers can be found at the end of this section. Try to apply the law to the facts and think about the various topics that have been covered in the module.
Do not be worried if the answer is not immediately obvious, problem questions require you to understand and to apply the law as opposed to just learning and repeating what you have learned. The answers are also just for guidance purposes; you can still show understanding of the topic in various ways. Refer back to the notes if necessary, this should help you understand how the various constitutional sources in the UK and the distinctions between legal sources and political sources.
Part A: The UK government introduces a number of new pieces of legislation into Parliament as a result of the leave vote to leave the European Union. The Brexit Act 2016 removes all references to EU law in the legal system of England and Wales. The Anti-Brexitism Act 2016 criminalises individuals from referring to others as 'Brexiters' or 'Remainers' in a public place, or via social media. The Scotland Remains in the EU Act 2016 grants Scotland independence from the UK in order to enable Scotland to stay in the European Union. Which if any of these Acts of Parliament are constitutional acts and why?
Part B: Le Doso is a 'monist' state in relation to international treaty law. They have just ratified the International Convention on the Protection of Rights of All Migrant Workers and Member of Their Families 1990. A group of workers who have travelled from a neighbouring state of Las Pasos have worked in Le Doso for 10 months on a government project to build railways; they feel that they have been discriminated against in relation to the terms and conditions offered to them and the Las Pasos nationals. How can they enforce their rights under the Migrant Workers Convention? How would this be different if Le Doso was a 'dualist' system that had not passed any legislation specifically passing the Migrant Workers Convention into law?
Part C: Following the vote to leave the EU and the difficulties in agreeing how the UK will leave the EU, Theresa May decides to resign as Prime Minister for the United Kingdom and approaches the Queen with her resignation. The Queen decides to approach Nigel Farage leader of the UK Independence Party to form a government although they do not command a majority in the House of Commons. The Queen likes the work they did during the campaign to leave the EU and thinks they ought to have a chance in government. Taking account of constitutional conventions and common law, what is the likely outcome of the Queen's actions?
Part D: Public pressure leads the Conservative Party to call an early general election in 2018, the Labour Party win the election with Jeremy Corbyn as leader who wants to introduce a financial policy referred to as 'Quantitive Easing' in order to inject money into the economy and to raise funds to renationalise the railways. The Labour government introduce the Quantitive Easing Bill 2018, which is defined as a 'money bill' into Parliament for debate, the House of Lords who still command a Conservative majority and who don't agree with the nationalisation of the railways block the Bill. What is the constitutional solution for the Labour Government?
A) In the absence of a written constitution a key source of UK constitutional law is Acts of Parliament which deal with constitutional law issues. The proposed Brexit Act 2016 removes references to European Union law from the English/Welsh legal system - since European Union law is currently part of the body of UK constitutional law, this Act is an amendment to the UK constitution and thus a constitutional act. The Anti-Brexitism Act 2016 establishes criminal laws which have an impact on everyone and as such do not form part of the UK constitution. The Scotland Remains in the EU Act 2016 grants Scottish independence and hence changes the relationship between the Westminster government and the Scottish government in a fundamental manner. It is a major constitutional change and as such this is a constitutional Act.
B) A 'monist' system in respect of international law means that once an international Convention is ratified it automatically becomes law in that country and needs no further action from the legislature to bring it into law. The Las Pasos migrant workers should be able to rely upon anti-discrimination measures within the Migrant Workers Convention to bring their claim to a Le Doso court. If Le Doso were a dualist state, it means that it requires legislation to bring international obligations into domestic law. Since Le Doso have not introduced legislation to give effect to the Migrant Workers Convention, the Las Pasos migrant workers would only be able to rely upon any existing legislation in force in Le Doso to bring their claim. [NB: If an international convention has a individual claims procedure this is also a possible avenue of redress, but not strictly required for a question on constitutional law].
C) At common law, under the Royal Prerogative, the reigning Monarch has unlimited power to appoint the Prime Minister. However, it is a constitutional convention that the Government must have been elected in a general election and command a majority in the House of Commons. The UK Independence Party do not have a majority in the House of Commons, so the Queen is unable to appoint Nigel Farage as Prime Minister. There is no legal sanction against the Queen in this instance, but such an act is likely to bring the Monarch into question or even challenge the existence of the Monarchy and the Monarch's role as Head of State.
D) Since the Parliament Act 1911 the House of Lords have no power to veto a Bill, except one to extend the lifetime of Parliament. It placed strict limits on the House of Lord's involvement in financial decisions. By convention, money bills have expedited passage through the House of Lords with little debate
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