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The Constitution – NotesWhat is a constitution?
A body of laws, rules and practices that sets out the way in which a state or society is
organised
Constitution establishes the relationship between the state and its citizens
Constitution provides a framework for the political system
- Establishing the main institutions of government
- Determining where decision making authority resides
- Protecting the basic rights of citizens
In liberal democracies, the constitution provides an important defence against any abuse of
power by the state
Provides for a system of limited government under which a system of checks and balances
serves to limit any danger of over mighty government
The judiciary is empowered to use the constitution as a tool when deciding whether the
state has acted in a manner which is lawful and legitimate (constitutional) and when it has
failed to do so (unconstitutional)
Codified and uncodified constitutions
Codified constitution - a single authoritative document that sets out the laws, rules and
principles by which a state is governed, and which protects the rights of citizens
Uncodified constitution - a constitution where the laws, rules and principles specifying how a
state is to be governed are not gathered in a single document
They are found in a variety of sources
Features of codified constitutions
Generally produced at a critical juncture in a nation's history
Newly found independence - us constitution
Period of authoritarian rule - Spanish constitution
Codified constitution is afforded the stages of fundamental law
Fundamental law - constitutional law that is deliberately set above regular statute in terms
of status and given a degree of protection against regular laws
Entrenchment and amendment
Codified constitutions are entrenched – special procedures are needed for amendment
Regular laws are generally enacted based on a simple majority vote in the legislature
Amending a codified constitution will generally require a supermajority far in excess of 50%
in the legislature or approval by national referendum
Codified constitutions are correct arises rigid while uncodified constitutions are more flexible
Uncodified constitution
, Absence of any properly entrenched and superior fundamental laws in the UK means that
the constitution can be amended by acts of parliament
Duction of parliamentary sovereignty holds that parliament has legislative supremacy,
enabling it to pass laws on any matter of his choosing and to overturn any existing law
The sources of the UK constitution (page 42 to 44)
Statute law
Law created by acts of parliament
Acts of parliament must be approved by the HOC, HOL and the monarch
Examples of statute law that have been of historical importance in constitutional terms
include
- Great reform act 1832: extended the franchise
- Human rights act 1998
- Fixed terms parliament act 2011: established fixed 5 yearly elections
Common law
Law derived from general customs or traditions and the decision of judges
Senior judges in the higher courts use their power of judicial review to clarify or establish the
legal position where statute law is absent or not clear
As parliament is sovereign, a statute law is supreme, the government can always overturn
common law president by means of an act of parliament
Because of that, and with the absence of superior fundamental law, the UK courts can never
declare the government's actions as unconstitutional, only incompatible with the human
rights act
Royal prerogative is an example of common law
- Powers of the crown that are exercised by government ministers in the monarch’s name
The royal prerogative
The crowns prerogative powers traditionally included the right to
- Appoint ministers and choose the Prime Minister
- Give Royal assent to legislation
- Declare war and negotiate treaties
Although held formally by the monarch, many of these powers came to be exercised by
government ministers in the name of the Crown
The prerogative power to dissolve parliament was ended by the fixed term parliaments Act
2011
Conventions
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