What is a constitution?
Set of rules seeking to establishing the duties, powers and functions of the various institutions of government To regulate the relationships between and among the institutions Define the relationship between the state and the individual, define extent of civil liberty
Types of Constitution
Codified and uncodified
Codified – enshrined in law and based on 1 single authoritative document outlining powers of institutions + government, as well as a statement of the rights of citizen’s Document is authoritative, highest law of the land. Binds all political institutions – leads to 2 tier legal system Provisions of it are entrenched, difficult to amend or abolish It is judiciable, all political bodies are subject to authority of the courts, in particular a supreme court. Uncodified – increasingly rare, UK one of few
Not authoritative, constitutional laws treated same as ordinary laws Not entrenched, constitution can be changed through the normal process for enacting statute law. Not judiciable, judges do not have legal standard to declare that actions of other bodies are constitutional/not constitutional. However:
No constitution is entirely written, written documents do not encompass all aspects of constitutional practice No constitution is entirely unwritten, no constitution consisting only of rules of conduct or behaviour. Unitary and federal
Unitary – establish constitutional supremacy of central government over provincial and local bodies. Reflected in UK via Parliament Federal – divide sovereignty between 2 levels of government, both central and regional posses a range of powers that the other cannot encroach upon. Rigid and flexible
Codified can be quite flexible, occurs through process of judicial interpretation. I.e. US constitution means whatever the justices of the Supreme Court says it means Some aspects of the UK uncodified constitution are resistant to change, including principle of Parliamentary sovereignty and the Royal Prerogative.
Sources of UK Constitution
Acts of Parliament, due to Parliamentary sovereignty.
Statutes outrank all other forms of the constitution
I.e. the Constitutional Reform Act 2005, setting up supreme court Common law
Body of laws based on tradition, custom and precedent
Created and refined by the courts of a case by case basis
Use of precedent, where judgements made in earlier similar cases are taken to be binding. E.g. Royal Prerogative, formal powers of Crown Traditional rights and freedoms up till passage of Human Rights Act Conventions
Key unwritten element within the constitution, being non-legal they are often ambiguous and not wholly defined. E.g. convention that the government will either resign or call an election if defeated on a major bill by the HoC, but debate on what is a major bill No legal consequences for ignoring conventions
Also, Royal Assent is assumed to always be given in order to not challenge the democratic will of Parliament Exercise of Crown powers including appointing ministers, declaring war, dissolving and recalling Parliament are all taken by the PM. Individual ministerial responsibility and collective ministerial. Works of constitutional authority
Needed because there are many gaps and confusions in UK uncodified constitution, uncertainty on how rules and principles should be applied in practice Works carry out interpretation, of what the constitution actually means They lack legal authority, and are only consulted and followed in considered to be relevant Walter Bagehot’s The English Constitution – “first amongst equals” Thomas Erskine May’s Treatise on the Law, most authoritative account of the practices, procedures and rules of Parliament European law and Treaties
UK became subject to European laws after joining the EC in 1973 Since then, process of European integration has continued and European bodies have grown in importance Higher status of EU law over UK statute law has...
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