Constitutional principles and the legal

system
Legal System and Method
Overview of the lecture
• What is a constitution?
• Constitution of the United Kingdom
• Fundamental constitutional principles
• Constitution and the legal system
• Judicial independence
• Access to justice
• Statutory interpretation
What is a constitution?
• The legal structure for the governance of the
state

• “The set of laws, rules and practices that

create the basic institutions of the state, and
its component and related parts, and
stipulate the powers of those institutions and
the relationship between the different
institutions and between those institutions
and the individual.“ (HL Constitution
Committee)

• A constitution may be written or unwritten

Constitution of the United Kingdom
• No one document containing the constitution
• Instead it is made up of
• Statutes, for example Human Rights Act 1998.
• Common law, for example R (Miller) v Secretary of State for Exiting the European
Union [2017] UKSC 5
• Constitutional conventions, for example Royal Assent
• Constitutional principles
• European and international law
Constitutional principles
• Parliamentary sovereignty
• Rule of law
• Separation of powers
Parliamentary sovereignty
• Two parts
• Parliament can make or unmake any law
• The legality of an Act of Parliament cannot be challenged in the court

• Note: there are restrictions, notably through EU law - Factortame v Secretary of

State for Transport (No 2) [1991] 1 All ER 70.
Rule of law
• No one definition
• Formal and substantive
conceptions of rule of law
• Lord Bingham, ‘The rule of law’
(2010)
• Constitutional Reform Act 2005,
s1
Separation of powers
• Legislature: makes the law
• Executive: administers the law
• Judiciary: interprets and applies the law
• But there is no complete separation of powers in the British
constitution
Judicial independence and the rule of law
• Judiciary must operate in accordance with the law
• Institutional independence
• Separate from influence of executive and legislature
• Constitutional Reform Act 2005 – the role of the Lord Chancellor
• The Supreme Court
Judicial independence and the Supreme Court
• The rule of law requires that any persons with a bona fide reasonable legal
claim must have an effective means of having that claim considered… And
the rule of law also requires that, save to the extent that it would involve a
denial of justice, the determination of any such claim is carried out in public.
So citizens must have access to the courts to have their claims, and their
defences, determined by judges in public according to the law …

• (Lord Neuberger, ‘Justice in an age of austerity’, 2013 Tom Sargant Memorial

Lecture, at https://www.supremecourt.uk/docs/speech-131015.pdf).
Judicial independence and the rule of law
• Institutional independence of the judiciary and the separation of
powers

• Constitutional Reform Act 2005 – new statutory duty

• Personal independence
• R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.2)
[2000] 1 A.C. 119
Access to Civil Justice and the rule of law
The rule of law requires that any persons with a bona fide reasonable legal
claim must have an effective means of having that claim considered… And the
rule of law also requires that, save to the extent that it would involve a denial
of justice, the determination of any such claim is carried out in public. So
citizens must have access to the courts to have their claims, and their defences,
determined by judges in public according to the law …

(Lord Neuberger, ‘Justice in an age of austerity’, 2013 Tom Sargant Memorial

Lecture, at https://www.supremecourt.uk/docs/speech-131015.pdf).
Access to civil justice, legal aid and the rule of law
• Legal aid = provision of public funding to enable people to afford legal
advice and legal representation
• Litigant in person = someone who represents themselves in court with
professional legal assistance.

• Legal Aid, Sentencing and Punishment of Offenders Act 2012 -

“LASPO”
• Removed whole areas of law from scope of legal aid
• Impact on access to justice – for litigants in person
House of Commons Justice Committee Report
The common law right to access a court is a cornerstone of our democracy. In his
book, The Rule of Law, the late Lord Bingham said that one of the ingredients of the
rule of law itself was that "means must be provided for resolving, without prohibitive
cost or inordinate delay, bona fide disputes which the parties are unable themselves
to resolve" and "denial of legal protection to the poor litigant who cannot afford to
pay is one enemy of the rule of law." We agree. We have therefore undertaken this
inquiry to examine the success of the legal aid reforms in protecting access to justice
while addressing issues of cost, and to make recommendations where we believe
access to justice has been compromised.

House of Commons Justice Committee report, 4 March 2015, para 4 at

https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/31104.htm
Statutory interpretation and parliamentary sovereignty
• Giving effect to the intention of parliament
• Human Rights Act 1998:
• Section 3: give effect to legislation in a way that is compatible with Convention
rights, so far as possible
• Section 4: declaration of incompatibility : a balance between parliamentary
sovereignty and human rights protection
Resources
• LSM Module Guide, pp25 - 31
• Askey and McLeod, Studying Law, Chapter 3 ‘The Constitutional Context of
English law’.
• Courts and Tribunals Judiciary, ‘Independence’ at
https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-
government-and-the-constitution/jud-acc-ind/independence/
• Courts and Tribunals Judiciary, ‘The justice system and the constitution’, at
https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-
government-and-the-constitution/jud-acc-ind/justice-sys-and-constitution/
Thanks for listening
• What is a constitution?
• Constitution of the United
Kingdom
• Fundamental constitutional
principles
• Constitution and the legal system
• Judicial independence
• Access to justice
• Statutory interpretation

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