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Constitutional Law Module Summary
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Constitutional LawLecture 1 – Introduction and Sources of Constitutional Law
Constitutional Law
https://www.publiclawforeveryone.com/
What is Constitutional law?
Constitutional law is concerned with the role and powers of the institutions within the state
and with the relationship between the citizen and the state. The constitution will reflect the
moral and political values of the people it governs, and the law of constitution must be
appreciated within social political content that it operates. The study of the constitution of
the UK involves acquiring an understanding of historical, legal, philosophical and political
factors which have over centuries shaped the organisation of the state. Under all
constitutions, not all of the rules will be written, and still less will they be collected within a
single document. The study involves the ‘inter alia’, an appreciation of natural law and social
contract theories, which underpin the constitutional limitations on government powers in
order that the rights of individuals are protected against the power of the state. Parliament
has the ultimate law-making power within the state and does not mean that there are no
restraints on what Parliament may do. The law-making powers of parliament are unlimited
and constrained by the electorate to which parliament is accountable, and by economic,
moral and political necessitates. The Crown has the right to appoint the Prime Minister of its
choice, to summon Parliament and to enter into Treaties. The legal powers of the Crown are
restricted, and constrained but non-legal conventional rules determine the conditions under
which the Crown has a discretion to exercise its power. In order to understand how a
constitution works, it is necessary to understand the conventional rules which have
developed over time and have taken on binding force.
Constitutionalism
Constitutionalism is the doctrine that governs the legitimacy of government action. This is
regarded as conformity with the broad philosophical values within a state. This requires
official conduct to be in accordance with pre-fixed legal rules. This suggests the limitations
of power, the separation of powers and the doctrine of responsible accountable
government for the protection of individual rights. This suggest the following:
- That the exercise of power is kept within the legal limits conferred by Parliament, the
concept of intra vires, and that of those who exercise power are accountable to law;
- That the exercise of power is irrespective of legal authority and must conform to the
notion of respect for the individual and individual citizens rights;
- That the powers conferred on institutions within a state whether legislative,
executive or judicial, be sufficiently dispersed between the various institutions so as
to avoid the abuse of power
- That the government, in formulating policy, and the legislature, in legitimating that
policy, are accountable to the electorate on whose trust power is held;
,Public Law
Public law and the State.
Public law deals with legal arrangements which establish the institutions of the state and
regulates the exercise of political power. It concerns some of our most basic and
fundamental laws.
Public law is usually in two parts – Constitutional and Administrative law.
- What is the Government?
The Government is the Parliament, led by the Prime Minister Teresa May and several MPs.
This also looks at the relationship between the Government and citizens and the laws
between both. The power that Government has over the laws that it makes and how it
controls these laws. Ultra vires – when the Government acts beyond their powers.
- What is a State?
Common model of explanation in Western democracies, social contracts. Thomas Hobbs;
John Locke and Jeans Jacques Rousseau. These are philosophers who have great significance
when it comes to talking about the state. This is where the Government looks after others
due to social benefits, such as welfare and security. This is currently viewed as a burden to
the Government as it is misused and the Government should look at this in more depth,
looking at the people.
- What is a Constitution?
This is a central piece of legislation, otherwise known as a legal document, this can be
written or not written. Every organisation has objectives and departments or offices
established to accomplish these objectives, and needs a constitution to define these
powers. A constitution will define the manner in which the rules in fact operate and dictate
what ought to happen in a given situation. Constitutional rules facilitate the stability and
predictability of behaviour. A Constitution is deemed as:
- Providing legitimacy for the state and governance.
- Rules providing for the resolution of disputes
- Rule identifying the personnel, functions and powers of the executive, legislature
and judiciary
- Rules that regulate the relationship between the executive, legislature and the
judiciary
- Rules limiting government power
- Rules providing how the constitutional players should behave
- The values and principles respected by the state, such as democracy and the rule of
law
- Rules relating to the amendment of the constitution
- Provision for democracy through rougher elections
- Rules that regulate the relationship between the state the its citizens
Thomas Paine – ‘a constitution is not the act of a government, but of a people constituting a
government, and a government without a constitution is power without right… A
constitution is a thing antecedent to a government; and a government is only the creature
of a constitution.’
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.
Historical examples include:
Steal of Hammurabi (Babylonia, 1772 BC)
Golden Bull (Holy Roman Empire, 1356)
Instrument of Government (England, 1653)
United Stations Constitution (USA, 1787)
A constitution regulates function, powers and duties of the different parts of government.
This defines the relationship between the state and its citizen. It is superior to other laws in
the state, implicitly or explicitly. This often defines history, identity and values of society.
SE Finer – ‘codes of rules which aspire to regulate the allocation of functions, powers and
duties among the various agencies and officers of government, and defines the relationships
between them and the public’.
A King – ‘set of most important rules that regulate the relations among the different parts of
the government of a given country and also the regulations between the different parts of
the government and the people of the country’.
The UK Constitution
No single document.
No single defining moment of history, but a slow evolution.
Constitution made of statues, conventions, judicial decisions and treaties.
Therefore, they are not unwritten, but uncodified.
Different pieces of legislation make up a constitution.
Constitutions are classified as outlined below.
- Written and unwritten, the UK’s constitution is unwritten, but uncodified.
- Rigid and flexible, the UKs constitution is flexible in nature.
- Supreme and subordinate, the UKs constitution is supreme.
- Federal and unitary, the UK’s constitution is formally unitary in structure, but with
powers devolved to Northern Ireland, Scotland and Wales and to local government.
- Separated powers and fused powers, the UKs constitution exhibits mainly but not
completely separated powers.
- Republican and monarchical, the UKs constitution is monarchical.
Each state has its own separate laws.
Sources of the UKs constitution – central concepts
- Parliamentary Sovereignty
- Rule of Law (this means that nobody is above the law and that the law should be
supreme to all people)
- Separation of Powers (legislation; the judiciary; the executive) Legislation involves
laws made by the government. The judiciary is made up of judges and courts. The
executive is made up of the prime minster of the UK and the cabinet.
- Royal Prerogative (the royal monarchy, and the ability to pass a law)
Scotland have a common law and a civil law.
, Many Acts of Parliament are central to the UK’s constitution. Due to parliamentary
sovereignty, all of them can theoretically be repealed by another act of parliament. LJ laws
refer to some states as ‘constitutional statutes’.
Important examples include:
- Magna Carta (1215) King John granted concessions to nobility, setting up some basic
rules for the state. Chapter 29 of the Magna Carta says that; no man shall be
punished except by the judgement of his peers or the law of the land.
- Freedom of the Church, liberties to cities, prohibition of unjust taxation.
- Today there is more historical importance.
Magna Carta 1215. Represented a formal settlement between the Crown and the barons.
The settlement provided for freedom of the Church, and the right of merchants to be free
from exorbitant taxation. Today the documents important lies in its declaration of the
confirmation of the liberties enjoyed by the freedom of the realm and their future
protection, and in the protection to be given to the enjoyment of these liberties by the
requirement for trial by jury.
The Petition of Right 1628. This arose as a result of Darnel’s Case in 1627 where the
defendants had been convicted and imprisoned for refusing to pay a loan imposed by King
Charles 1. The petition forbade such loans, taxes and other monetary demands with the
consent of Parliament. This petition, still in force, was superseded by the Bill of Rights 1689.
The Bill of Rights 1689 is of greater contemporary constitutional importance than Magna
Carta and the Petition of Right. The main provisions of the bill of rights are:
- Article I – the pretended power of suspending…or executing laws by the Crown
without parliamentary consent is illegal;
- Article IV – the levying of money for the use of the Crown under the prerogative
without parliament consent is illegal;
- Article VI – the raising or keeping of any army in peacetime without parliamentary
consent is illegal;
- Article VIII – elections of Members of Parliament ought to be free;
- Article IX – freedom of speech and debates in proceedings in Parliament ought not to
be impeached of questioned in any court of place out of Parliament;
- Article X – excessive bail ought not to be required, no excessive fines imposed, nor
cruel and unusual punishments inflicted;
- Article XI – jury trial is available;
- Article XIII – for the readdress of grievances, Parliament ought to meet frequently.
The Act of Settlement 1700 clarified the line of succession to the throne. The act also
provided security of tenure for th3ejudicary during good behaviour, thus ending the power
of the Crown to dismiss judges at will. In relation to the succession of the throne, the Act
tied the succession to Protestant heirs, thus prohibiting accession to the throne by persons
who are Roman Catholics, or who may marry one.
The Treaty of Union 1706 united England and Scotland under a single Parliament of Great
Britain. Prior to the treaty, each country enjoyed independent sovereign status. Scotland
had its own Parliament and decades earlier the King of Scotland and King of England had
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