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What is a Constitution
Just two years ago in 2015, it was a remarkable year as it marked two anniversaries of enormous significance in the history of the British constitutional and the legal history. First and foremost, it was the anniversary of the 800th anniversary where King John’s accepted the Magna Carta, one of the most famous documents in the world and the great charter of liberties of the English nation in 1215. Second was the 750th anniversary of the Simon de Montfort Parliament in 1265, which followed his defeat of King Henry III in a civil war crises which culminated in the baronial uprising. To mark these anniversaries, an annual ICHRPI conference was arranged by the History of Parliament Trust in 2015. The conference took these two anniversaries as a starting point for a look back of the development and commencement of political institutions from the early Middle Ages onwards. Such assessment is fundamental to the constitutional system in the role of a state formation and nation building. Such anniversaries in 2015 which is just not too long ago, is indeed a perfect time for the reflection on the UK’s constitution. Over a period of 800 years, the constitution has changed gradually evolving from a feudal to a constitutional monarchy with parliamentary sovereignty and in fact, this evolution has been there and ongoing for a long period of time without an official constitutional moment.
There can be no state without a constitution; as every state should and do have a constitution. It outlines the powers, functions and limitation of the organs of the state and defines the relationship between the state with its individual citizens. Importantly, it reflects the ideology of a country. British constitutional system is the oldest democratic system in the modern world which provides democratic principles and most Commonwealth nations like Canada, India, Indonesia and Australia have adopted it. The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) is generally regarded as having a ‘unwritten’ constitution, as the UK never adopted a single document that formalises the fundamental rules and restrictions of its central governing institutions. This is unusual as it is one of the only few nations alongside with Israel, New Zealand and Saudi Arabia which is without a written constitution. A constitution is ‘unwritten’ in the sense that there is no single document containing all the constitution provisions and particularly, these provisions are not codified and do not have a higher status than other ordinary laws. Britain’s lack of a ‘written’ constitution can be explained by its history where Professor Robert Blackburn explains this system in which Britain does not have a codified constitution but an unwritten one formed of Acts of Parliament, court judgments and conventions. In other countries, many which have experienced regime change and hence, it has been necessary to start from scratch from first principles, constructing new state institutions and defining in detail their relations with each other and bilateral relationship with other nations and their citizens like Thailand, officially known as the Kingdom of Thailand or countries which adopt the concept of constitution like Singapore which some of its law originated from the Federation of Malaya. By contrast, the British Constitution has evolved over a long period of time and has reflected the relative stability of the British polity. It has never been thought any necessity to consolidate the basic core of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, treaties and judicial decisions which collectively can be referred to as the British Constitution. It is a more accurate way to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one. As a result, the UK never adopted a single document that formalises the fundamental rules and restrictions of its governing institutions.
UK constitution is an uncodified, unitary, parliamentary-executive, flexible constitution. The constitution is made up of a mixture of legal rules and non-legal conventional rules which operate as a complement to the legal source. Legal rules include various statutes, case law and international treaties. Statutes are the main source of the British Constitution and from as early as the 16th century, statutes established the Parliament, roles of the Monarchy, powers of the Houses of Lords and Commons and also the responsibilities of the judiciary. In the landmark case of Thoburn v Sunderland City Council (2003), the court held that there are two categories of statutes within the UK Constitutional and Ordinary statutes. Ordinary statutes are subject to implied repeal and Constitutional Statutes are not as they are generally considered to have special constitutional significance and are protected from the doctrine of ‘implied repeal’. However, this is subject as the Parliament has the right to repeal them expressly when a need arises. Since this is the case, there has been great controversy in regarded to the existence of these constitutional statutes. Some of the ‘constitutional’ statues include: Magna Carta 1215, The Bill of Rights 1688 to more recently, The European Communities Act 1972 (ECA 1972) and The Human Rights Act 1998 (HRA 1998). The House of Lords Select Committee on the Constitution stated that ‘the constitution is uncodified and although it is in part written there is no single, accepted and agreed list on statutes which form that part of the constitution which is indeed written down’.
On the other hand, in a seminal English case of Entick v Carrington (1765), it showed the importance of statute in case law where without legal authority and in the absence of a statute, the executive basically is unable to perform anything. Conventions are classified as being a source of the constitution but these are not legally binding; generally non-legal source. The Queen cannot refuse Royal Assent to Bill of Parliament is a good example of the convention. Although there are no restraints on the Queen’s power to refuse an assent, it is inconceivable in this current democratic, modern century, and more than 300 years such refusal has not happened. Another vital part of the United Kingdom constitution is royal prerogatives. Such prerogatives are residual power left to the Crown after the Glorious Revolution. They played and maintained an important role in dualist system and that no new prerogatives can be created in the event of a clash situation between a prerogative and legislation. It has been confirmed that it is always that an Act of Parliament prevails. Prerogatives which are commonly known and used include: the right to appoint a prime minister, grant pardons, open and dissolve Parliament, declare treaties and wars. In practice, royal prerogative is used in the appointment of all government ministers and the sole power to choose dates of general election by the Prime Minister in the name of the monarch. A famous constitutional theorist, A. V. Dicey stated that constitutional conventions were ‘…. rules for determining the mode in which the discretionary powers of the Crown ought to be exercised. … Conventions are constitutional rules, which are not laws in the strict sense….. which are designed to control the use of discretionary power by the Crown’. This definition from A. V. Dicey concentrates on what conventions are supposed to achieve as constitutional conventions are meant to be a means of bringing about change without by any way of formal change by legislation and must be judged by their ability to fulfil their proclaimed function.
There however exists some doubt as to which common law, statutory rules or conventions are correctly defined as constitutional rules. This is because some external sources also contribute to the constitutional rules, for instance the European Court of Justice (ECJ) and its interpretation of European Community law which has slightly watered down the notion of the nation’s sovereignty which include examples such as The European Communities Act 1972 (ECA 1972), the Treaty of the European Union (the Maastricht Treaty) 1992 and the European Community (Amendment) Act 1986 which gave effect to the UK entry into the European Community. Furthermore, with the establishment of State Assemblies, there will continue to have some devolution of power to Wales, Scotland and Northern Ireland. In addition, the incorporation of EU law into the UKs domestic legal system will have a great impact on certain human rights issues and on judicial role in statutory interpretation and precedent as the Human Rights Act 1998 (HRA 1998) give legal effect to the ECHR. However in particular, the interpretation the courts have given to section 3 of the Act as in the case of R v A, where the manner which a statute is to be interpreted, seems to tacitly affect parliamentary sovereignty. The Succession to the Crown Act 2013 then amends the primogeniture rules.
The debate about the codification of the UK constitution has gone through a number of phases in the past several decades. Most recently, suggestions for a radical reform of the constitution into a codified one have surfaced. There were a number of constitution reforms proposed in 1990s, three constitution reforms (MacDonald Consitution which was published with the Liberal Democrats federal green paper, Tony Benn’s Constitution ordered by the House of Commons in 1991 and The IPPR Constitution) were proposed and the most recent reform proposal made by the present government (The Bill of Rights). Even though these government white papers and consultation documents display different motivations for the codifications of the constitution, there are some reasons identified to be the most important, such as the balance of the power of the executive, stability, and clarity. The nature of UK constitution and whether UK should or should not adopt a written constitution will be evaluated.
For the British constitution
Separation of powers
The concept of the separation of powers of the British Constitution can be traced back to Aristotle, who states: ‘there are three elements in each constitution …first, the deliberative, which discusses everything of common importance; second the officials, and the third, the judicial element’. This highlights the three main elementary functions that are necessary for the organisation of any state. Nowadays they are defined as the executive, judicial and legislative which functions are carried out by the Government. The executive is all the institutions and persons which are in line with the implementation of the laws made by the legislature. It included the involvement of central and local government and the armed forces. The role of the executive includes initiating and implementing legislation, maintaining order and security, promoting social and economic welfare, conducting the external relations of the state and administering public services. The judiciary is made up mainly of professional judges and their main function is to determine disputed in relation to the fact and in accordance with the law laid down by Parliament and put forward by the courts which is usually done in the civil and criminal courts. The legislature is the law-making body, which compromised the House of Commons and the House of Lords. The legislative function involves the enactment of general rules determining the structure and powers of public authorities. It also has the responsibility to regulate the conduct of citizens and private organisations.
As such, there was a big overlap in between the main organs and in recent years, the position of Lord Chancellor that held this overlap. This role has been continually citied to support the view that there is no separation of powers in the United Kingdom. Historically, the position of Lord Chancellor was distinctive as he was a member of all three branches of Government and exercised all three forms of power all by himself. He was a senior cabinet minister (executive function), was head of the judiciary (judicial function) and sit as speaker in the House of Lords (legislative function). After the Human Rights Act 1998 and the case of McGonnell v UK (2000), changes to the role of Lord Chancellor was announced by the Government in the UK. In McGonnell, the European Court of Human Rights (ECHR) held that the Royal Court Bailiff of Guernsey had too close connection between his executive roles, judicial functions and his legislative role. A too close connection make that there is no clear distinction of independence and impartiality as required by Article 6(1) of the European Convention on Human Rights 1950. This had a big implication on the Lord Chancellor’s role, as his responsibility is to require him to perform very similar functions in the UK. The Government then enacted the Constitutional Reform Act 2005, which meant that the Chancellor was replaced as head of the judiciary by the Lord Chief Justice. He was replaced as speaker in the House of Lords by the creation of the post of Lord Speaker and currently only responsible to appoint judges on the basis of recommendation from a Judicial Appointments Commission.
Constitutional experts who have written on the subject such as A.V Dicey mentioned that there is a serious overlap between the executive and the legislative where checks and balances between the three functions of government is necessary. Since most of the ministers are members of the elected party, this allows the executive always have its ways with its legislative programme and by virtue of the doctrine of Parliament sovereignty. The legislation will be the highest law in the land and there is no limit on the Parliament legislate on any subject matter. This is indeed unsafe, as Lord Hailsham described it as ‘elective dictatorship’. Thus it can be argued that Parliament sovereignty is in fact a ‘dual-eged sword’, with a codified constitution, this ‘elective dictatorship’ will effectively be ended. A codified constitution would not be possible for government to interfere with it due to the higher law status safeguarging the constitution; it will be policed by senior judges and any amendment or repeal of it requires a higher form of legislative process. The accountability of those holding power is a theme which runs through the government and society. As Lord Scarman wrote in Why Britain Needs a Written constitution (1992), ‘a government above the law is a menace to be defeated’. Professor Robert Stevens in The Independence of the Judiciary: The view from the Lord chancellor’s office (1993) points out: ‘nothing underlines the atheoretical nature of the British Constitution more than the casualness with which it approached the separation of powers’. Therefore it is imperative for there to be checks and controls on the three institutions.
Parliamentary sovereignty also called parliamentary supremacy is the most important principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law and has is supreme over all other government institutions including executive or judicial bodies. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Based on the Diceyan theory, Parliamentary sovereignty means that they “can make and unmake any law whatsoever”. It also holds in the position where it can change or repeal any previous legislation, and so it is not bound by written law (in some cases, even a constitution) or by precedent. Many states have sovereign legislatures, including Finland, Netherlands, New Zealand and Sweden.
One of the most convincing arguments for codifying the constitution is that parliamentary sovereignty is out of control and in need of reform. There is the proposal that if parliament is truly sovereign and individual cannot have rights against Parliament which leads to the worrying conclusion that if the individual has no rights against their own state governors then the individual may have no rights at all. This prompt idea for a codified constitution that would limit parliamentary sovereignty on parliament’s power to ensure that the individuals’ rights are protected. Reddy, in particular, express the opinion that a constitutional restraint has become a necessity since the Parliament Acts 1911 and 1949 removed a number of crucial limitations on parliament’s power. He argues that these limitations had previously acted as a way of balancing legislative power to prevent branches of government acting unilaterally and that without these limitations, parliament “may pass any law on any subject it pleases and faces only weak institutional constraints”.
In comparison to this, Barber argues that the necessary “rebalance has already occurred” with the European Communities Act 1972, the Human Rights Act 1998 and devolution all serving to limit the power of Westminster. This argument is supported by the evidence that courts have previously ruled against parliament in human rights decisions and have felt it necessary to submit declarations of incompatibility when they have found new legislation to be incompatible with European Union law. However there is still the very real concern that parliament could circumvent these if they chose to and have attempted to in the past. Following the 2016 referendum vote to leave the European Union (EU), the UK government started the withdrawal process on 29 March 2017, putting the UK on course to leave by April 2019. By looking at once the UK officially leaves the EU then European Union law would cease to be a limitation on their powers. Then, it could be accepted that Britain’s constitution should be codified to provide limitations on parliament’s power when dealing with its people.
Clarity and certainty
One argument is that a codified constitution would make rules clearer. Key constitutional rules are collected together in a single document, they are more clearly defined than a ‘unwritten’ constitution where rules are spread across many different documents including legislation, case rulings, conventions, parliamentary practice and European Union law. To that, it cannot be said that the British constitution is clear and accessible to everyone. By codifying the constitution, it would create less confusion about the meaning of the constitutional rules and greater certainty that they can be enforced. Three research professors, Vernon Bogdanor, Tarunabh Khaitan, Stefan Vogenauer raised the question on whether it should be a peoples’ constitution which would be short, but inevitably, broadly-worded and therefore open to the public openly or a lawyers’ constitution which would be long and highly detailed but less accessible to the public. It is undeniable that as a peoples’ constitution will help its citizens to be aware more of what the constitutional position was and have more certainty if they wanted to take issues to the courts.
Lord Neuberger in a speech to the Legal Wales Conference said that some people might seem to be in an unsatisfactory position with an international treaty, as interpreted by an international court, namely the European convention on human rights, acting as a semi-constitution. Further, if the UK had a codified constitution, this would presumably have primacy over decisions of the human rights court in Strasbourg and even those of the EU court in Luxembourg. Accordingly, where those decisions appeared to be inconsistent with any fundamental constitutional principles, those principles would prevail. The judge even added that currently, without an overriding constitution, it is very difficult for a UK court to adopt such an approach, but it is an approach which, for instance, the German constitutional court has shown itself quite ready to take when appropriate. Turning to the main political parties’ promise to hand over further powers to the Scottish assembly, Neuberger added: our system of government is going to be significantly reconsidered and restructured, there is obviously a more powerful case for a written constitution.
Better in protecting rights
The main reason proposed by the UK constitution’s codification activists is to further protect human rights, especially the British citizens’ right in the UK. Individual liberty would be more securely protected by a codified constitution because the rights would be more clearly defined and easier to be enforced. The Conservative party had pledged in their 2015 manifesto to abolish the Conservative party made the promise that they would abolish the Human Rights Act 1998 (HRA 1998) and replace it with a Bill of Rights if they win in the 2015 general election in order to ‘break the formal link between British courts and the European Court of Human Rights, and make UK Supreme Court the ultimate arbiter of human rights matters in the UK’. After the 2015 general election, David Cameron said that the repeal of Human Rights Act 2008 (HRA) would be brought forward rapidly. Later this was quietly dropped with the emphasis on HRA repeal focusing on criminals using the right to family life to avoid deportation. In 2014, the government were able to change immigration rules to make it much harder for criminals to use the right to a family life to resist deportation, again addressing a criticism often levelled at the HRA. In her Conservative Party leadership campaign in July Theresa May stated that she would not campaign to leave the ECHR as there was no parliamentary majority for such a move. This leaves the door open to withdraw the ECHR and proposed the British bill of rights which is not expected to be published now and will be later date which is considerably easier to do following withdrawal from the EU. However, this made it clearly that the UK people understand that the HRA 1998 itself is not sufficient and they need a better safeguard of human rights which the only way is to codify the constitution.
An example of a situation that can be taken as an example is where the Sri Lankan government which is with a presence of a codified constitution wanted to change the constitution according to the current need of the country but to change the constitution is very hard because the constitution is very inflexible. For now, with a codified constitution the government cannot fulfil the needs of the society to better protect its citizens. Doing differently from Sri Lanka, the British parliament which is without a codified constitution can change their constitution any time as a result of when there is a crisis or national emergency situations UK can easily protect their country from that threat. The Prevention of Terrorism Act of 2004 and the Immigration Act of 2008, these two Acts are classic examples to show the current openness strengthens the constitution. Because of the openness it is very easy to entrench the constitution on the other hand it is very easy to modify according to the democratic needs of the society. So it is sensible to say that the British constitutional system indicates and reflect the changing circumstance and the changing world to protect rights of its citizens.
Against the British constitution
By having a codified constitution the flexibility would be lost for the government as things become more rigid. Without a written constitution, legislation which Her Majesty the Queen in Parliament enacts will become part of a codified constitution. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. Most of the proposals attempt to put at least part of the UK constitution into a codified document and endow it with a superior status than other ordinary law, means that the Bill of Rights could only be amended or repealed by a harder way than the ordinary law. If any amendments to Britain’s constitution are made, it is necessary to have by at least two-third majority votes support in both Houses of Parliament to be followed by the Royal Assent from Her Majesty The Queen of the United Kingdom, Queen Elizabeth II instead of one-third of the majority vote which is easier to achieve. In countries like the USA, it is nearly impossible to change their constitution. By remaining without a codified constitution, UK system has parliamentary sovereignty, a strong executive and a clear sense of authority to get things done. It is a fact that the UK is a unitary state with Parliament sitting at Westminster being the only body competent to legislate for the UK and all laws in the UK including laws relating to the constitution may be enacted, repealed or amended by the Queen in Parliament. There is no specific procedure for changing the law, that is, very important law can be changed by simple majority. This simply means that the decision making process is not muted in any way by past legislation. This is the ultimate law-making power vested in a democratically elected Parliament to put forward any amendment to the current law or abolish any law which is outdated. The inflexible and rigid nature of written constitutions is often open to amendments when laws are out dated, the idea of making amendments when necessary would hardly be any different to the present constitutional system.
Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution. The independence of the judiciary has never been questioned as a principle, although application is problematic. Personnel have been increasingly isolated from the other organs of government, no longer sitting in the House of Lords or in the Cabinet. The court’s ability to legislate through precedent, its inability to question validly enacted law through legislative supremacy and parliamentary sovereignty, and the role of the Europe-wide institution to legislate, execute and judge on matters also define the boundaries of the UK system.
As Foley said, all constitutions leave important things unsaid. A codified constitution is regarded rigid as its higher status makes it difficult to be changed or modified in order to cope with the unforeseeable developments in this ever-changing society. This flexible feature of the UK constitution allows the uncomplicated development and changed within the constitution while its legal aspects remain unaffected. An example for this would be the creation of ‘Sewel Convention’ in 1999, which prohibited Parliament from legislating on the devolved matters without Scottish Parliament’s consent while the Westminster Parliament still retains the right to legislate on their behalf. It has somehow managed to function quite efficiently and past the tests of time in being a long lasting system of governance. Where concerns arise, the nature of this unwritten constitution has proved to iron out itself and work quite nicely.
Another argument against adopting a codified constitution is judicial tyranny and democratic rule in the UK. The UK’s long-period of unbroken democratic rule is often seen as a strength of the uncodified constitutional system. In the UK’s uncodified constitution, supreme constitutional authority is vested in the elected House of Commons. Changes to the constitution therefore come about due to democratic pressure. For example, the powers of the House of Lords were reduced through both Parliament Acts of 1911 and 1949 because of a growing belief that an unelected second chamber should no longer have the right to block policies of the elected government. Under a codified constitution judges would be the people policing the constitution. Judges are unelected and social unrepresentative which would lead to a democratic deficit due to a lack of democratic legitimacy. A codified constitution would be interpreted in a way that is not subject to public accountability. It may also be interpreted due to the preferences and values of senior judges.
There are two main principles will be compromised. First is judicial neutrality. A codified constitution would draw the judiciary into the political arena as judges would then have to decide on political issue. It would be undemocratic for unelected judges to be able to overturn the decision of democratically elected representatives of the people. Moreover, the UK constitution is based on Parliamentary sovereignty. This doctrine is often seen as a democratic symbol rather than elective dictatorship. It uphold the flexibility of constitution and it is sensible to let a group of representatives of people to make decisions as they mandate given by the people. Though ‘absolute power corrupts absolutely’, UK in fact has various mechanism controlling the behaviour of ministers by convention, through it cannot be legally enforced acting unconstitutionally will result in political repercussion and hold them accountable.
There is a less important but valid argument against a codified constitution is that it is unnecessary. Many people believe that the uncodified constitutional nature of UK politics has ensured we have a long history of democracy. Through a codified constitution it is undeniable that it would make the rules clearer, but there is loads of practical difficulties for outweigh for this advantage. As stated by Blick, the precise content of the constitution will be difficult to determine. This is due to the facts that the UK constitution is derived from various sources such as conventions which constituting an extremely important source, are mostly undefined and not legally binding. Furthermore, such an exercise would consume a substantial amount of money and time, although money is worth to be paid for greater protection of rights, it is clear the present protection of rights is adequate. British has been stable and has had a responsible government, present safeguard is sufficient to hold government accountable; adding that there is no strong demand from the people to have a codified constitution. UK’s written constitution has endured for such a long period, every constitutional rules can be found in books and also protected from the doctrine of ‘implied repeal’, it is unnecessary to codify it just to show an apparent democracy which it has always been there. Codified constitutions may also not be the most effective way of limiting government power. Improving the check and balance in our political system may be a better way of preventing over-might government rather than having a codified, written constitution.
Impact if UK adopts a written constitution
If there was a written constitution, it does have impact of changing the nature of a country. While the change can be for better or worse, the constitutional impact of divergences from long traditions does guarantee political and social change. However, that change may not always result in greater accountability and democracy. To that, this one would be legally sovereign, instead of the Parliament. So there would be a norm hierarchy, a Parliament which would enact or modify a constitutional Act would bind its successors. Also, courts could refuse to apply an act because it would be unconstitutional, or they would interpret it in the light of the constitution. Then, an
organ of control for the constitutionality of statutes would be needed. It could be a court like in Germany (The Federal Constitutional Court), or a special council like in France (The Constitutional Council). At the demand of judges, citizens or a certain number of MPs (within or without a trial running), this constitutional control organ could declare an act unconstitutional and non-valid. As if the UK adopts a codified constitution, it can lead to judicial tyranny where judges should not be able to police the constitution because they are unelected and are not socially representative. This means that there is a lack of democratic legitimacy and certain groups in society; example ethnic groups may not have their views or opinions realised and therefore a democratic deficit would be created. Furthermore, to amend constitutional laws a qualified majority would be needed; and maybe some laws would be entrenched, like in the case of Germany as a prominent example for the constitutional laws touching to the fundamental principles which protect human’s rights and federalism. Finally, if there was a move to a written constitution, this one would probably be legally sovereign, and a lot of principals related to the Parliament sovereignty would be questioned as like why the country laws are subject to European Union laws and human rights law where it incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law hence required to be null and void if that is the situation.
Considering many arguments on the codified and uncodified constitution which have been pointed out above, it is submitted that the UK should not and need not to have a codified constitution. The most important reason is inflexibility codified constitution are by nature entrenched and have a higher status over statute law. For now, without a codified constitution, if UK law need to be changed then statute law can be changed through the passing of an Act of Parliament. With a codified constitution it is much harder to change laws as the procedure is too complicated and therefore constitution can become outdated with a rapidly changing modern society. UK Parliament and executives are also subjected to various control mechanism which hold them responsible. Through judicial review, judiciary has been given powers to question the actions of government but should not further as they are not democratically elected. If it isn’t broke, then don’t fix it, will be the most suitable description to UK’s situation. The calls for reform of the UK constitution shows that the population do have an appetite for a codification in principle of the constitution and it should remain in a way that its citizens prefer. William Hague, the Former Leader of the House of Commons once said, ‘that there was no need for a written constitution as we have already internal stability and democratic accountability, and Britain has been well served by its unwritten constitution’.
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- R v A (No 2)  UKHL 25
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