This document contains lecture notes formulated by Durham University law professor Roger Masterman in relation to the UK Constitutional Law module. These notes specifically speak of the Institutions of Government and Structure of the UK after devolution.
Masterman and Murray, Constitutional and Administrative Law (2nd edn, 2018), chs 8 – 13 (a
skim read will suffice)
OR
Fenwick, Phillipson and Williams, Text, Cases and Materials on Public Law and Human Rights
(4th edn, 2017), chs 6, 8, 9, 12 (a skim read will suffice)
Recommended Reading:
Dickson, ‘Devolution in Northern Ireland’, in Jowell and O’Cinneide (eds), The Changing
Constitutions (9th edn, 2019)
McHarg, ‘Devolution in Scotland’, in Jowell and O’Cinneide (eds), The Changing Constitutions
(9th edn, 2019)
Rawlings, ‘The Welsh Way’, in Jowell and O’Cinneide (eds), The Changing Constitutions (9th
edn, 2019)
T Fairclough, 'Constitutional Change, Standing Orders, and EVEL: A Step in the Wrong
Direction?' (UK Constitutional Law Blog, 22 February 2016)
Walker, “Beyond the Unitary Conception of the United Kingdom Constitution” [2000] PL 384
There are excellent, accessible resources on how the UK Parliament works at:
https://www.parliament.uk/about/. For the devolved legislatures, see:
https://www.parliament.scot/visitandlearn/how-the-parliament-works.aspx;
https://senedd.wales/en/abthome/role-of-assembly-how-it-works/Pages/role-of-assembly-
how-it-works.aspx; and http://www.niassembly.gov.uk/about-the-assembly/general-
information/history-of-the-assembly/
___________________________________________________________________________
Introduction: the Constitution as a Map of the State
One way of thinking about the function of a constitution is as providing a ‘map’ of the state.
In other words, it tells us where governmental power lies, or ought to lie, within a particular
constitutional order. A written constitution will typically: establish key institutions of state;
identify their core powers; indicate how they are to be constituted; specify how they relate
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, to one another; and state any limits on their powers. An unwritten constitution will do
these things too, although we have to look to a wider range of sources to find the relevant
rules. In both written and unwritten constitutions, core constitutional rules and principles
will be overlain by more detailed regulation, and modified by practice.
The UK has a particularly complex and untidy distribution of governmental power, and you
are not expected to have a detailed understanding of how governmental institutions
operate in practice. However, this lecture aims to give you an overview of the most
important functional and territorial divisions within the UK, as a basis for more detailed
examination of particular constitutional issues and doctrines later in the module.
Task:
After this week’s lecture, try to draw a ‘map’ of the main governmental institutions in the
UK, and how they relate to one another.
Functional Divisions of Power within the UK
Virtually all constitutions distinguish between different types of governmental power, which
are then allocated to different constitutional institutions. The key functional distinctions
are:
Legislative power – the power to make law;
Executive power – the power to direct the business of the state and to administer
public policies;
Judicial power – the power to determine disputes about the meaning and application
of the law, and to ensure that the law is upheld.
This functional division of power gives rise to an important doctrine of Western
constitutionalism – the separation of powers. As you will see in lectures 14 – 17, the UK
constitution does not perfectly adhere to the separation of powers. Moreover, this simple
functional division does not adequately capture the range of functions that particular
institutions perform. Nevertheless, we can identify distinct legislative, executive and judicial
bodies within the UK’s governmental system.
Legislative Institutions
The main legislative institution in the UK is the UK (or Westminster) Parliament, although
there are also devolved legislatures for Scotland, Wales and Northern Ireland (see further
below).
The UK Parliament is a bicameral (two chamber) body, consisting of the House of Commons
and the House of Lords. Technically, the UK legislature is the ‘Crown in Parliament’. This
means that primary legislation (with the exception of Bills passed under the Parliament Acts
1911 and 1949) must have the consent of the House of Commons, the House of Lords and
the Monarch, although by convention Royal Assent is always granted.
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