Unitary constitution – all power is held by the parliament in Westminster
Source
http://republicat40.org/wp-
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the-Unitary-Conception-of-the-
United-Kingdom-Constitution.pdf
Notes
Single unrivalled agency
We connect the characteristics of the constitution to
a single overarching characteristic of it being
unwritten
Textbook characterization of the constitution does
not reflect the deep legal structure of the
constitution. There should be a holistic constitutional
identity to reflect the natural organic product of the
constitution which changes (slow historical growth).
Authority of the constitution rest upon its traditional
roots but the constitution is constantly changing and
evolving (not in an incremental fashion either).
Unitary conception of the constitution is parasitic
upon the doctrine of parliamentary sovereignty (We
characterize the constitution as unitary because we
subscribe to the “rule of recognition” which places
the Queen in Parliament in a position of impeachable
authority)
Parliamentary sovereignty cannot exist without the
unitary constitutional order but the opposite may be
true (Footnote 20)
Unitary state – can be political or legal
Legal conception – type of order and authority
generate through the specialized form of institutional
normative order
Political conception – defacto political power and
the order produced through the operation of that
power
Relevant literature set up unitary and federal as
conceptual opposites with mutual dependent
meaning. Therefore, no need to define non-unitary
order. But, there are constitutional forms which
challenge unitary order – e.g. entrenched charter of
rights may pose a challenge and impose limits upon
the ultimate authority of any single complex of
legislative and executive power (Ireland). Diarchical
constitutional management system in which primary
law making is divided between the legislative and
executive (France)

Strong versions of the separation of power doctrine

in US also challenges the unitary order

Definition of federal government is elusive.

Generally understood as legal authority distributed
between central (federal) legislature and government
and provincial (state) authorities + neither sphere is
free to trespass upon the competence of the other

Unitary – single centre of authority

Pluralism on opposite end of spectrum (diversity of
authorities and influences, and a normative thesis
which advocates a diffusion of power between
different group

Equates pluralism as the opposite of political unitary

constitution (whereas federalism is the opposite of
legal unitary constitution)

Politics of regional or national identity, predicated

upon a territorially based cultural pluralism
The US Constitution develops certain pluralist lines
of thought to argue for the comprehensive
framework of checks and balances

Pluralism is very diverse. Pluralism which looks to

civil society and the framework of government for
the diverse centre of authority & pluralism which
look to the operation of the market-place as an
alternative form of ordering and interest
representation. (Paul Craig)

Pluralism consistent with strong free market

orientation. Many of the development of public law
is linked to the hollowing out of the state through the
transfer of functions outwards to private and other
non-state agencies and the introduction of private
management techniques. Transfer of decision-
making from public bureaucracy to private
enterprise and to reshape public bureaucracy which
involves greater responsiveness to the consumer and
greater internal competition over access to resources.
Privatization, proliferation of ombudsmen etc.

Marquand suggest that pluralisms should not be

thought of as a doctrine but as a mentality consistent
with a number of different doctrines

Similarly, unitary theories are diverse as well.

Dicey – dominant political authority of parliament
justified through a bottom-up conception of the
representative democracy. Central legislative
institution being liable to electoral correction if it
passed questionable laws.

Legal sovereignty acts as a impediment to the

institutional design of federalism but a unitary
conception of the constitution may still be able to
accommodate diversity.
Federalism can be viewed as a broader political
discourse (as opposed to legal discourse). Federalist
elements (sometimes labeled as quasi-federal) are
compatible with the unitary constitution.
Devolved assemblies for Scotland and N.I – no
attempt have been made to entrench the status
against a future Westminster Parliament (i.e. it can
be abolished). No attempt to prevent the parliament
from encroaching on the devolved sphere of
authority – the sovereign authority of Westminster to
legislate even in transferred matters is explicitly
preserved (Scotland Act 1998. S28 (7). Parliament is
not policed by a court but the Judicial Committee of
the Privy Council monitors the compliances of the
devolved but not the central Westminster body.
(Scotland Act 1998, ss.33, 98 and Sched 6)

However, the centre does not have any general

power of veto over local legislation (N.I Act 1998
ss10, 14 and 25 + Scotland Act 1998 ss35 -38)
This is a characteristics of federalism.
The Scottish allow a tax-varying power to the
devolved executive and parliament (ss 73-80).

Although there is no entrenchment, the intent was to

link the new institutions to the consent of the
constituencies affected which is made explicit in the
Belfast Agreement and the Northern Ireland Act (S1)
and a background assumption in the N.I Act
 The unitary legal conception does not recognize
institutional differences in territories. UK, Canada
and Spain (also known as the union state) have parts
of the territory which have been incorporated by
agreement (and which agreement allow for variation
in governmental arrangements).

The unitary/federal opposition recognizes nothing

beyond that dichotomy. Ideas of the union state and
asymmetrical government requires a broader
political discourse which is less one-dimensional.
Union states can be either unitary states (UK) or
federal state (Canada)
Their characteristics is not captured by either legal
category and may both be compatible with the
formal terms of the unitary terms.

Development of a state-transcendent human rights

jurisprudence – non-state courts and tribunals within
which human rights may be vindicated (e.g. the
European Court of Human Rights under the auspices
of the Council of Europe)
R v Bow Street Metropolitan (ex p Pinochet) No3 2
W.L.R 827 saw the HOL draw upon domestic law
and international law and held that a former head of
state enjoys no immunity.

Irish and Scottish devolution settlement recognize

the ECHR (and introduced the Human Rights
Commission) as a strategy for double protection –
there is a guarantee of a minimum floor of
citizenship rights regardless of who hold sovereign
power in the North
Scotland Act 1998, ss.29(1)d), 57 and Sched. 4,
para. 2(f); Northern Ireland Act, ss.6(2)(c), 7(1)(b)
and 24(1)(a). See also the establishment of a
Northern Ireland Human Rights Commission under
ss.68 72.


The New British Constitution Doctrine of direct effect and supremacy

E Wicks (Footnote 9) Contrary to Dicey’s oft-quoted

assertion, it appeared that there was now a body with
power to set aside the legislation of parliament
UK public believe that membership of the European
Communities was solely a matter of economics but
the government’s white paper (UK and European
Communities) states that they reject the concept that
European unity should be limited to the formation of
a free trade area

Dicey argue that there is no middle-ground between

the unitary state other than federalism
Did devolution prevent further superseding of the
unitary constitution? In a 4 party political system,
the SNP in Scotland would have been able to win a
majority in the Scottish parliament with just 35% of
the vote.

1976 lecture on Elective Dictatorship

Lord Hailsham declared himself concerned that a
government (elected with just 37% of the vote)
could implement radical reform which the public did
not desire
“Our constitution is wearing out. Its central defects
are gradually outweighing its merit and its central
defects consist in the absolute power we confer on
our sovereign body and the concentration of those
powers in an executive government formed out of
one party may not fairly represent the popular will”
Lord Hailsham proposed a written constitution
which limits the power of parliament through a bill
of rights

British politics in post war year saw an increase in

the role of the state

Check on executive power = political

But the conservatives under Thatcher and John
Major remained in offer for a longer period in
Britain’s history since the Napoleonic war
KD Ewing and CA Gearty (Footnote 20) claimed
that the political system allowed for the
concentration of power in the hands of the executive
(and the prime minister in particular) – an executive
that enjoyed the support of less than half the voting
public

Use of referendum by the labour party

Referendums held before devolution in Scotland,
Wales and Northern Ireland
Seem to be accepted by labour government that
constitutional change should depend upon a vote of
the people as well as a vote by parliament

Under the School Standards and Framework Act

1998, a provision was made for parental ballots to be
held before grammar schools were abolished. Labour
opposed to grammar schools but believed that there
should be local ballots before they were abolished.
Ballot must be held if a petition is signed by more
than 20% of the relevant eligible parents.

Local Government Act 2000  5% of registered

local electors in a local authority could require that
authority to hold a referendum on whether to
introduce a directly elected mayor

Judges can decide if legislation from Scottish

Parliament or North Ireland assembly lies within the
power of those bodies – i.e. declare the legislation to
be unlawful.
Since 1973, judges have to interpret Westminster
statutes so that they are in accordance with the
European Community Law

R v Secretary of State for Employment ex parte Eoc

the HOL declared that legislation relating to part-
time employees violated an EU Directive
The Times commented that “Britain may now have
for the first time in its history, a constitutional court”

New threats (such as the growth of terrorism) meant

that neither public opinion nor parliament can be
relied upon to protect the rights of unpopular
minorities such as asylum seekers
2001 Anti-Terrorism, Crime and Security Act shows
that parliamentary scrutiny of legislation bearing on
human rights can be somewhat perfunctory during a
period of moral panic. The 2001 Act allowed for the
detention of suspected terrorists if the Home
Secretary had reasonable grounds to suspect that
they were a threat to national security.
Bill was debated for just 16 hours in the House of
Commons and received royal assent a month after
being introduced into Commons

Internationalization of public law
Belmarsh Prison case – HOL ruled that the 2001 act
was incompatible with the ECHR prohibition on
discrimination in respect to the right to liberty
In 1974, Lord Scarman declared that “when times
are abnormally alive with fear and prejudice, it
cannot resist the will, however, frightened and
prejudiced it may be of parliament”
Parliament cannot repeal the HRA
Article 3 of the HRA provides that the court read
legislation so as to give effect to convention rights
whenever enacted. Doctrine of implied repeal does
not interfere with this. A latter statute cannot trump
the HRA – the HRA therefore modifies the strict
doctrine of parliamentary sovereignty.
However, rights still depend upon the discretion of
parliament. No impetus to amend legislation, which
have been found to be incompatible with convention
rights.
The HRA only allow the judge to participate in a
debate about the appropriate balance between human
right and executive power. Final resolution lies with
parliament.
British courts have to accept a decision made by the
European Court of Human Rights (if the British
litigant seek recourse to Strasbourg)
Dualism is only partial
Courts have long accepted customary international
law
Pinochet – only a legislature can authorized courts in
the UK to impose criminal liability
Dualism prevents other states from imposing the will
contrary to the parliament and UK general interest
Dualist state = having the right to refuse to comply
with treaty obligations
E.g. international covenant on economic, social and
cultural rights and the convention Footnote 50