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Public LawLecture 1: Charachteristics of the UK Constitution
Introduction:
What is a constitution and what does it do?
One view of the purpose of the constitution is to control, contain and constrain
the activities of government – placing legal limits and defining the powers of
government. But this argument is informed by American Liberal politics and does
not necessarily apply to the UK. The better argument is that the main function of
the constitution is to empower government and enable them to act on behalf of
the people they were elected by. A secondary function of the constitution is
placing legal limits on the powers and functions of government, ensuring
procedure is followed
Does the United Kingdom have a constitution?
Disputed, as we do not have a codified written constitution like that of the US.
However, it cannot be said that we do not have a constitution. As any society,
community etc will always have a body of rules that is used to govern. Our
constitution is different, but we still have a constutional system and framework.
Codification is a heavily disputed topic, with advantages and disadvantages.
What is the United Kingdom?
Public Law 1
, Union of Great Britain (England, Wales and Scotland) and Northern Ireland. With
certain devolved powers to assemblies, e.g. London, Wales and Scotland.
United Kingdom of what, and for how long?
How long can this union be maintained in light of pressures from Brexit and the
desire of independence from a large % of people in Scotland.
Charachteristics of the UK Constitution:
Geographical boundaries;
British constitutional boundaries has shrunk from the times of the British Empire
(E.g. Canada needed an Act of Parliament from Westminster to change their
constitution and this came to an end in 1982) to the boundaries of the
constitution today.
Guiding principles;
Rule of Law, Parliamentary Sovereignty and Responsible Government
(Governent responsible to Parliament, e.g. individual ministerial responsibility
and collective responsibility)
Written v unwritten;
We don’t have a written constitution similar to other European constitutions or
that of the US, but we do have a constitution made up of multiple written
sources; from Treaty of Union (1707) to conventions
Unitary v federal v hybrid;
UK is largely a unitary state with some devolution to various bodies, e.g.
Scotland,Wales and N.Ireland. Contrasting with US, that are complete
federations. UK could be classed as a hybrid as it is largely centralised with
certain tendencies of federal devolution (8 million out of 65 million people are in
devolved areas).
Centralised v decentralised;
England is a highly centralised state with a continued centralisation process, e.g.
with COVID Track & Trace would traditionally be done by local authorities but is
now done by central government. Indication of how power is drifting from local
authorities to central government, but this does have its dangers as it very
difficult to govern from the centre on micro-matters without using the expertise of
local governments. But on the other hand, there has been an increase of
devolved powers to Scotland and Wales, with possible Scottish independence.
Public Law 2
, Dynamic v static;
Dynamic nature of the constitution is defined as a constitution that is constantly
evolving and changing. Whilst a static constitution is one that rarely changes
over time. The UK constitution is very dynamic, e.g. in the last 20 years there
has been significant changes; e.g. devolution to Scotland, Wales and N.Ireland,
Introduction of the Human Rights Act (1998), House of Lords Reform Act (1999),
Withdrawal from the EU, Fixed Term Parliaments Act and over-written in 2019.
Rigid v flexible;
Rigid constitution is one that is difficult to change, e.g. a strict procedure to carry
out strict amendments, e.g. in Ireland the approval of the legislature and a
referendum is needed. US needs a majority in Congress and ¾ of all States. UK
Constitution is very flexible in that it can simply be amended via an Act of
Parliament. However this is just in theory and in reality, it can be quite difficult as
governments feel the need to adopt certain procedures in order to secure
sufficient public support. This procedure is not actually needed but there are
certain circumstances were governments do carry them out, e.g. in 1911 to
reduce the powers of the Lords’ a general election was called where this was a
significant point of debate. Since 1997, there has been a willingness of
government to ensure that they had public support e.g. via referendums on
devolution, referendum to change electoral system from FPTP to AV. Our
constitution is indeed flexible but still stable, for example over the last 200 years
the main institutions of government are very similar to what we have today.
Political v legal;
Does the UK have a political or legal constitution? Political constitutions tend to
emphasise the role of political and democratic institutions, e.g. Parliament, as
being the principle focus of the control of government. Legal constitutions tend to
define legal restrains on the powers of government, ensuring greater
accountability. Historically, the UK has a political constitution with little judicial
intervention. But recently, many legal scholars have identified a growing role of
the courts in their willingness to criticise government, most evident in the Brexit
process. Swinging towards a legal constitution. Some may argue that the courts
have grown too powerful, but others argue this just shows much government has
deviated from democratic legal principles that they are elected to follow and so it
is the duty of the courts to ensure these principles are followed.
Power conferring v power restraining;
Public Law 3
, The UK traditionally has a power conferring and not power restraining
constitution.
Constitutionalism and ‘democracy’;
Some may argue that the constitution could restrain democracy, as procedures
could prevent elected officials carrying out the agenda that they were elected to
carry out. Following the constitution is a pre-conditional element of democracy,
but constitutionalism arises in all forms of government not just in democratic
states.
Lecture 2: Sources of the UK Constitution
There are 4 Legal Sources of the UK Constitution, and 5 Non-Legal Sources.
Legal Sources of the British Constitution:
1. Treaty of Union
2. Acts of Parliament
Why are particular Acts of Parliament regarded as 'Constitutional', and what is
the effect of them being 'Constitutional?
Statutes are said to be constitutional because they are:
(1) Those that deal with constitutional principles: the following Acts are
labelled constitutional simply because what they do, they address
constitutional questions. They deal with a number of constitutional themes
and principles, notably the Bill of Rights 1689 and The Constitutional Reform
Act 2005 - in s.1 it re-states the principle of the Rule of Law as a fundamental
principle of the British Constitution and in the Act there are provisions made
for judicial independence and the duty of government ministers to uphold
judicial independence which is a fundamental principle in any liberal
constitutional democracy. The Constitutional Reform Act 2005 is also a
statute of constitutional significance because it deals with question of judicial
appointments, in a way which enhances judicial independence which in itself
is an essential requirement of the Rule of Law as a principle of the
constitution.
(2) Those that define the structure of the State: examples include legislation
which has been introduced to create and enhance devolved legislatures in
Scotland, Wales and N.Ireland and their relationship with Westminster
Parliament. As a result, these devolution statutes will typically devolve certain
Public Law 4
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