Supervision 1 prep

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DEPARTMENT OF LAND ECONOMY
LAND ECONOMY TRIPOS 2022, Part 1A
Paper 2: The Public Sector: Institutional and Legal Frameworks
Supervision 1 - Nature and Sources of the UK Constitution
Essential reading
Elliott and Thomas: Public Law OUP 4th ed Chs 1-3
Pannick: “A call to arms: asking Parliament to decide on war and peace” The Times September 2013 (attached)
Learning Outcomes
At the end of this supervision you will be able to:
1. Explain the essential nature and functions of a constitution, with particular reference to the constitution of the UK.
2. Explain and illustrate the key sources of the UK constitution and some of its main features.
Indicative questions
Discussion in supervision will include the following:
· What is Public Law?
· What is a constitution?
· Why do states have constitutions?
· What form does a constitution usually take?
· How is a constitution usually amended? How is the UK constitution amended?
· A constitution might be defined as "a declaration of the country's supreme law". What does this statement imply?
· Where is the UK constitution to be found? Give examples drawn from each of these sources.
· Read the attached article by David Pannick. Has this claimed constitutional convention been honoured since 2013? What does this tell you about the nature of constitutional conventions?
· What are the organs of government in the UK?
· What is the function of each of the organs of government?
· What is a "constitutional statute"? See Thoburn v Sunderland City Council 2002. Give examples of such statutes. 
A call to arms: asking Parliament to decide on war and peace
URL: 
David Pannick
12 September 2013
Constitutional law stands at the crossroads of law and politics, directed by changing and sometimes conflicting signals from statutes, precedents, conventions and naked power. As demonstrated by last month's Parliamentary debate on Britain's response to the use of chemical weapons in Syria, one of the most important areas of current constitutional concern is Parliament's role in deciding whether we should engage in military action.
A timely and valuable report, Constitutional arrangements for the use of armed force, was published by the House of Lords Constitution Committee at the end of July. As it explains, the formal legal position is simple: the Prime Minister has power under the royal prerogative to order the deployment overseas of the armed forces of this country, and there is no requirement for Parliamentary approval, or indeed debate. However, the practice is very different.
Prime Ministers have recognised the need for Parliamentary discussion before military involvement in Iraq, Libya and now Syria. In February 2006, Prime Minister Tony Blair said that he could not "conceive of a situation" in which a government would go to war "without full Parliamentary debate", except if there were a military need to act "immediately" for the security of this country. In 2008, Gordon Brown's government suggested that Parliament's role should be formalised in a resolution to be passed by the House of Commons, but that proposal was not implemented.
In March 2011, the Foreign Secretary, William Hague, told Parliament that the government intended to "enshrine in law for the future the necessity of consulting Parliament on military action".
That has not (yet) occurred. Last November, Lord Wallace of Saltaire, a Government spokesman in the House of Lords, stated in a written answer that "except when there is an emergency and such action would not be appropriate", the government would comply with a "convention" that "before troops are committed, the House of Commons should have an opportunity to debate the matter".
The Foreign Office minister, Alistair Burt MP, told the Constitution Committee in June that "no decisions had been taken" on whether, or how, to implement Mr Hague's promise. There was "a difference of opinion" around the cabinet table (a statement that itself would, in earlier decades, have been regarded as a breach of another constitutional convention, concerning collective responsibility).
It is difficult to envisage a government committing troops to war in the future without Parliamentary debate, and indeed without the approval of the House of Commons, other than in an emergency. The political price of proceeding without Parliamentary support would be too high. However, should the role of Parliament be formalised in a resolution, or in legislation? The Constitution Committee concluded that Parliamentary control over the government in this area should remain a matter of convention. It was correct to do so.
There are four main points. First, formalisation would require a precise definition of the military intervention that requires Parliamentary involvement. What about the use of special forces in a foreign state, the arming of rebel forces or cyber-warfare? Second, to replace convention by legislation would create a risk that the courts would be asked to adjudicate on issues that should be left to political debate.
Third, in any event, the value of formalisation would be limited because it would need to allow the Prime Minister to act without Parliamentary action in an emergency.
Finally, the strength of the current convention that Parliament will be consulted, and the political price for failing to do so or for not accepting the judgment of the House of Commons, mean that there will be few, if any, cases where anything stronger than a convention is required.
In his contribution to the interesting set of essays published this month in tribute to Professor Vernon Bogdanor, The British Constitution: Continuity and Change (Hart Publishing, Peter Riddell points out that constitutional issues have surprisingly been regarded as "of little interest to voters and a matter mainly for enthusiasts and voters". Professor Bogdanor's own (and continuing) work has illuminated how law, politics and history affect constitutional issues of great significance.
If the Prime Minister were to ignore Parliament's views on Syria, even the electorate might become interested in constitutional law; but for the moment, and whatever your opinion of the House of Commons' vote last month, there is no justification for imposing legal obligations to supplement the political pressures on the Prime Minister.
David Pannick Q.C. is a practising barrister, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords
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