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
o 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 ...view middle of the document...
• Rigid and flexible
o 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
o Some aspects of the UK uncodified constitution are resistant to change, including principle of Parliamentary sovereignty and the Royal Prerogative.
Sources of UK Constitution
• Statue law
o Acts of Parliament, due to Parliamentary sovereignty.
o Statutes outrank all other forms of the constitution
o I.e. the Constitutional Reform Act 2005, setting up supreme court
• Common law
o Body of laws based on tradition, custom and precedent
o Created and refined by the courts of a case by case basis
o Use of precedent, where judgements made in earlier similar cases are taken to be binding. E.g. Royal Prerogative, formal powers of Crown
o Traditional rights and freedoms up till passage of Human Rights Act
o Key unwritten element within the constitution, being non-legal they are often ambiguous and not wholly defined.
o 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
o No legal consequences for ignoring conventions
o Also, Royal Assent is assumed to always be given in order to not challenge the democratic will of Parliament
o Exercise of Crown powers including appointing ministers, declaring war, dissolving and recalling Parliament are all taken by the PM.
o Individual ministerial responsibility and collective ministerial.
• Works of constitutional authority
o Needed because there are many gaps and confusions in UK uncodified constitution, uncertainty on how rules and principles should be applied in practice
o Works carry out interpretation, of what the constitution actually means
o They lack legal authority, and are only consulted and followed in considered to be relevant
o Walter Bagehot’s The English Constitution – “first amongst equals”
o Thomas Erskine May’s Treatise on the Law, most authoritative account of the practices, procedures and rules of Parliament
• European law and Treaties
o UK became subject to European laws after joining the EC in 1973
o Since then, process of European integration has continued and European bodies have grown in importance
o Higher status of EU law over UK statute law has gradually been recognised
o Led to questions about Parliamentary sovereignty.
o Maastricht Treaty 1992, introduced political union in the form of the EU.
Principles of the constitution
• Parliamentary sovereignty
o Strictly a form of legal sovereignty
o Can make, unmake and change any law that it wishes to
o Against: Not...