Lecture 1: Constitutional Law I (UK Const)
Course Overview
Topics covered:
UK Constitutional Structure
UK’s Uncodified Constitution
Parliamentary Sovereignty / Rule of Law / Separation of Powers
Parliament and Monarchy
Executive and Government
Legislation
Judiciary and Judicial Review
LMS Enrollment Key: 483910765
The Crown
Parliament Government Judiciary
PM /
House of
Ministers / Courts
Commons
Cabinet
House of
Local Govt. Tribunals
Lords
Devolved Devolved
Legislatures Governments
What is a Constitution?
• Set of rules
• Defines objectives and departments
• Regulates internal and external working
• Allocates powers and functions
• “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 different institutions and between those institutions
and the individual.” (House of Lords Select Committee on The Constitution, 2001)
• Defining function: Const. defines how the rules operates and dictate what ought
to happen.
• Evaluating function: provides a standard against which conduct can be judged /
evaluated
Constitutional Rules
• Const Rule: descriptive, normative, predictive, evaluative, and
judgmental
• Varied importance
• Specific / General
• Written or unwritten // Codified or uncodified
• UK: sources of Const. Rules are varied: statute and judicial
precedent + non-legal conventions and practices.
• Will usually provide for their amendment and change with more
important rules having a more difficult process.
• UK: Constitutional practice dictates how change will come about.
What is different about the UK
Constitution?
• Not in a single written document
• Product of continuous and peaceful historical evolution since
1066.
• Moral and political influences that make the study of constitution
difficult
• Legal and non-legal rules underpin the constitution
• Is it unwritten or is it uncodified?
Constitutionalism
• Doctrine of government legitimacy
• Far more than legality.
• Requirements of Constitutionalism:
1. Exercise of power is kept within legal limits conferred by
Parliament (concept of intra vires)
2. Exercise of power must have respect for individuals and
individual rights.
3. Powers conferred on state institutions to be dispersed to avoid
abuse of power (separation of powers)
4. Government and legislature accountable to the electorate.
What kind of Constitution is the UK
Constitution?
• “the whole system of government of a country, the collection of
rules which establish and regulate or govern the government”
(Professor Wheare)
• Constitution is prior to Government and regulates the legality of
power.
• Written constitutions: government conduct can be unlawful and
unconstitutional
• Unwritten constitution: conduct can be unconstitutional but not
necessarily unlawful.
Can an unwritten constitution even exist?
“If a constitution means a written document, then obviously Great
Britain has no constitution. In countries where such a document
exists, the word has that meaning. But the document itself merely
sets out rules determining the creation and operation of
governmental institutions, and obviously Great Britain has such
institutions and such rules. The phrase ‘British constitution’ is
used to describe those rules.” (Sir Ivor Jennings)
Classifications of Constitution
Professor Wheare:
• Written and unwritten
• Rigid and flexible
• Supreme and subordinate
• Federal and unitary
• Separated powers and fused powers
• Republican and monarchical
Uncodified or Unwritten?
• Written Constitutions: usually indicate a fresh start.
• Do written constitutions have all the rules and practices?
• Formal written rules are not the ultimate guide to govt. conduct.
• Written constitutions do rely on case law, constitutional
practices, political practices, and other norms which cannot be
found in a constitution.
• Unwritten constitutions rely more on these sources.
Flexible or Rigid?
• Refers to how easily a constitution can be amended or
changed.
• Written constitutions: constitutional rules will be ‘entrenched’
(protected from repeal and amendment)
• V stringent procedures for change e.g. US amendments need to
be approved by ¾ of state legislatures after being proposed by
2/3 majority in both Houses of Congress / all state legislatures.
• UK Const: very flexible. Parliament is sovereign and can make
whatever law it wants.
• Still non-legal constraints exist like the support of the people.
Supreme or Subordinate
• Supreme constitution refers to a legislature that is not bound by
a higher authority.
• Subordinate constitution is.
Unitary or Federal?
• Federal states: legislative powers are shared between
federation and regional governments (like in Pakistan).
• Constitution is supreme over all governments and legislature,
interpreted and upheld by a Supreme Court.
• UK: traditionally unitary, now more ‘muli-layered’ due to
devolution.
• Power is given to NI / Scotland / Wales and local governments
but that is through Acts of Parliaments that can be repealed at
any time e.g Govt of Ireland Act 1920 NI Constitution Act 1973
NI Act 1998
Separated or Fused Powers?
• Separation of Powers doctrine: to prevent abuse of power.
• Written constitutions can have clearly defined boundaries which
makes SoP achievable.
• Opposite of SoP is a totalitarian or a monarchist state where all
the functions of state lie in one body.
• UK: constitutional monarchy.
• Separate state institutions.
• Yet all bound by monarchy.
Republican or Monarchist?
• Republic: democratically elected President
• Can be ceremonial head of state or someone involved in
decision-making
• UK Constitutional Monarchy: The Monarch is the Head of State
and all acts of government are taken on behalf of the Monarch.
• Figurehead + continuity of state
• Government exercises power in the monarch’s name and this is
regulated by non-legal conventions. E.g. Royal Assent.
• Monarch also has a role in advising the PM.
The UK Constitution is:
• Largely unwritten (uncodified)
• Flexible
• Supreme
• Somewhat unitary with devolved power to NI/Scotland/Wales
• Somewhat has separated powers
• Monarchical
• Constitution is dynamic – able to change with very minimum
constitutional formality e.g. entering the EU / exiting the EU.