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Constitutional Law Lecture Notes
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The basics to constitutional law.
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Introduction.Public, not private law.
Private law: contract law, criminal law etc (actions of private individuals.
The law of the state.
1. State exercising power in the public interest.
2. The public holding state power to account.
Society is a 'political community'.
The core qualities of public law are food, shelter and future planning.
Political communities need:
Decisions: community must make decisions that affect all.
Debate: challenges inevitable when making decisions.
Disputes: conflict will need to be resolved.
Public law is a system which is developed for modern nation states to manage these questions.
Decisions must be made - government.
Debate is inevitable - parliament/legislature.
Disputes must be resolved - courts.
, What is a constitution?
There were protests in Chile due to government raising public transport prices - the country tends to
favour the rich, they were protesting the inequality in the country.
2019: Widespread protests the establishment.
2020: 78% vote to repeal the Pinochet constitution.
2021: Constitutional Assembly drafting new constitution.
2022: vote on new constitution is enacted.
New constitutions to manage conflict:
For the governors: avoiding further violence - if they did not acknowledge the protests, there
may have been actions to overthrow the government in retaliation.
For the governed: shifting the way public power is exercised - avoidance of violent procedures to
present their opinion.
Demonstrates the relationships between the government and the people in public law.
Constitution:
1. a document that sets out the rules of a state. (The UK does not have a single document of
constitutions).
2. a set of rules and practices providing a basis for government in a state.
The symbolic value of a constitution is legitimacy on social order at a given time - either through singular
documents or the actions of the government.
Constitutions are usually written after major upheavals e.g., after revolution or wars.
- usually abolish old constitutions to present updated constitutions of public order.
The UK doesn't have a codified constitution because we haven't had a major upheaval or 'revolutionary
moment' in order to change constitution quickly, however, there have been gradual transitions from
feudal monarchy to modern state - this includes the rise of parliament and decline of the monarchy. This
was not a violent order.
Constitution in the UK are mostly unwritten forms of conduct, but where they are they are often in
the form of statutes - usually common law rules are also known as constitutional conventions.
Codifying constitution: where constitutions are written all together in a document.
, Characteristics of the UK constitution.
1. Uncodified.
The UK has several important written sources, therefore is mostly unwritten e.g., the magna carta.
However, there is no single text for the written sources, so the constitutions are uncodified.
The UK doesn't have a codified constitution because there was no revolutionary moment, there was a
gradual transition from feudal monarchy to modern state through the rise of Parliament and the decline
of monarchy.
2. Formal monarchy and parliamentary democracy at the same time.
A formal monarchy in the UK is royalty - the monarchy was not always formal. At one time (e.g., Henry
VIII) the monarchs were in complete power of the UK (Henry VIII completely changed the religious aspect
with the creation of the church of England). Now, the queen is a symbol of unity and only has formal
powers.
The power has been replaced by the parliamentary democracy, the prime minister is appointed by the
Queen and needs the 'confidence' of Parliament to govern - PM's also get appointed by election of
individual states in the UK (not directly). The PM is the head of government.
The public vote is placed for a local MP in a local constituency - there is no direct vote for head of
government. Depending on which wing gains the majority vote across the country, depends on who is
appointed in the parliamentary government.
While the US has a presidential process (vote directly for the president), the UK has a parliamentary
process (do not vote directly, through a majority).
3. Not entrenched.
Entrenched: difficult to change.
The UK has no supreme law - all laws can have amendments; the law is flexible.
Legal amendment procedures:
Ireland - referendum required. (Difficult to change, but possible e.g., the abortion laws)
US - 2/3 of both houses of congress, and ratification by 3/4 of states. (Almost completely
entrenched).
UK - any act of parliament. (Relatively easy to change constitution).
4. Unitary state.
The UK is seen as a 'country of countries' that is governed from a central 'unit' of government in
Westminster.
This stage is the most subjective to change.
Devolution - creating parliaments and governments for countries of the UK e.g., assemblies in Northern
Ireland and Wales and parliament in Scotland. – power goes from central government to smaller ones.
Not federal - no even distribution of powers as in Germany or UK
Scotland has more power than Wales, but England has more power than Scotland.
One of the main powers given to Scotland is education acts – e.g., they have their own laws on
education making university tuition fees free for all Scottish people.
There may be a break-up of Britain - Scotland tried to vote to leave the UK, however UK says they must
have legal permission to leave.
, Equally, Northern Ireland and Wales were to forego the same vote to leave the UK.
All of the characteristics are subject to change in coming years:
Codification after Brexit.
Abolition of the monarchy ('outdated').
Courts entrenching principles.
Break up of Britain.
Referendum: a general vote by the electorate on a single political question which has been referred to
them for a direct decision.
Federal state: where separate states have the same level of power in a country.
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