Exam summary for the topic of constitutions (Public Law) - covers aspects such as whether the UK ought to have a written constitution and the features of the UK constitution.
For LSE students, this will be enough to cover most essay questions.
1. The UK lacks a codified constitution
a. Does not have a single document setting out in one place the fundamental laws outlining how the state works
b. Combination of legal (e.g. judicial precedent) and non-legal mechanisms (Marshall)
c. Heavy reliance on non-legal mechanisms such as constitutional conventions and the use of the prerogative
d. Lord Scarman: “today our constitution is not ‘unwritten’, but hidden and difficult to find”
2. Keystone principle is the Diceyean notion of parliamentary sovereignty
a. Parliament has unconstrained legislative freedom
i. Blackstone: “what the Crown in Parliament enacts is law”
b. However, this principle does not stand in isolation
c. Separation of powers means that the judiciary is an independent branch from the legislature and the executive
d. The judiciary keeps Parliament in check through the rule of law
i. Upholds the law as an expression of the latest will of Parliament
To what extent does the distinction between written and unwritten constitutions explain these features?
Written constitutions
1. Set out the powers, duties and functions of government institutions
a. Each branch of government is vested with only one main function of government, and each should be able to check
the action of the others
b. Consequently, because they are authoritative, they are considered as ‘higher law’
c. Thus establishes a formal separation of powers
2. Establish fundamental constitutional values
a. Serve as a ‘brake’ or a constraint on the exercise of government’s power because they are otherwise unauthorised to
act contrary to these values enshrined in the constitution
3. Ensures accountability
a. In the event the government does act contrary to these principles, because of the separation of powers, the judiciary
have the authority to declare such acts unconstitutional
b. Thus ensures that those entrusted with power use it responsibly and provides redress in the event of unlawful
government decisions
4. Relatively inflexible due to entrenchment
a. Not capable of being amended thoughtlessly and casually
b. Loughlin: if we treat the state as a mechanism that can be made and re-made in accordance with the floating fancies
and fashions of those in power, we lose the very basis of political authority
Unwritten constitutions
1. Nothing that authoritatively determines the allocation of powers among the institutions of government
a. Bagehot: ‘fusion’ of powers
b. Lord Hailsham has described the current constitutional arrangement as amounting to an elective dictatorship
c. All laws are equal due to an absence of hierarchy; there is no concept of ‘higher law’
2. No fundamental constitutional values in the absence of an authoritative document to lend protection to them
a. Government therefore has unconstrained power, including the ability to contradict long-established constitutional
principles or rights that people regard as fundamental
b. In the absence of a formal separation of power, the judiciary lacks the authority to challenge the validity of the
legislation enacted – no right to strike down any legislation violating these fundamental constitutional principles
3. Lacks a degree of permanence and is thus relatively more flexible in comparison to a written constitution
a. Capable of continual amendment by Parliament
b. Constitutional law can simply be repealed or amended as easily as it was enacted by passing a new Act of Parliament
4. In the absence of constitutional laws, conventions have thus arisen to fill the gap
a. Described as rules of constitutional practice which are regarded as binding in operation but not in law (Cabinet
Manual)
b. Bridge the gap between legal theory and real-world politics
c. Act as a constraint on legal freedom
Synthesis
1. To sum up the differences, written constitutions are thought to perform the dual functions of conferring authority on and
restricting the authority of the legislature
2. In the UK, however, in the absence of a written constitution, there is nothing to tell us what powers Parliament has or lacks
3. Consequently, it would appear that the UK’s constitution fails to perform these functions, giving rise to its unusual
characteristics
Distinction is not of much importance?
1. It would be helpful to adopt Marshall’s classification to understand the nature of the UK constitution
a. Totality of legal rules, which may be contained in different sources such as statutes and judicial precedent, that affect
the workings of government
, b. Combination of legal and non-legal rules that provide the framework of government and regulate the behaviour of
major political actors
2. While it might appear as if, in the absence of a written constitution, the UK fails to perform the twin functions of allocating and
limiting authority, it does not necessarily follow
a. Absence of a written constitution does not preclude the absence of a constitution performing those functions
i. Merely an issue of form
b. Constraining capacity of a constitution derives not from the fact that it is written
c. Rather, it derives from the fact that it enjoys a legal status superior to that of regular law, with the result that enacted
laws are valid only to the extent that they respect the terms of the legally superior constitution
d. The true issue is merely a matter of the strength of protection afforded
i. Laws LJ suggested that there existed a hierarchy of legislation such that there were ‘constitutional’ statutes
and ‘ordinary’ statutes, with the former being more difficult to repeal than the latter
ii. However, Elliott and Thomas point out that even if his view is followed, it is ultimately still a relatively
modest one – all that is needed is express words of repeal
iii. Diceyean view still prevails
Evaluation
1. King argues that it does not matter whether there is a ‘single instrument’
a. Constitutions are never written down and, even if they are, it is only in principle
b. Distinction should be made between constitutions in form, and constitutions in substance
i. He calls the former Constitutions, which are written documents, but not necessarily coextensive with all of a
country’s most important rules regulating the relations between different parts of government and those
between the government and the people
ii. As for the latter, he calls them constitutions and describes them as the set of rules performing the functions
lacking in the formal written documents
Should the constitution be codified/should it still remain unwritten?
Yes, it should be codified/no it should not still remain unwritten
1. The original reasons as to why it was unwritten in the first place are no longer relevant
a. Historical reasons less relevant since it may be said that the era of constitutional reform marks a new beginning in
Britain's constitutional development
i. Codified constitutions are typically enacted in response to such beginnings
1. French constitution adopted after Revolution of 1789
ii. Britain did not have such an obvious break in constitutional development unlike other countries or regimes
1. Even though a new Parliament was created in 1707 when the Acts of Union between England and
Scotland created the state of Great Britain, it merely inherited all the characteristics of the old
Parliament
2. Loughlin: no fundamental breakdown in governmental authority that would cause the English to
reconstitute themselves politically
iii. However, it may be argued that the devolution settlements of 1998 and the formation of the Greater London
Authority in 2000 has altered the nature of Parliament
1. Decentralisation of powers from Westminster and Whitehall has led to a shift from a unitary
system to that of a quasi-federal one
2. While it is not a breakdown in governmental authority, it has arguably led to a change in the
structure of government
iv. Good reason for a codified constitution to formally set out the boundaries and relationships between these
different levels of government
b. Conceptual reasons also less relevant than before
i. Fundamental principle is that of the Diceyean notion of parliamentary sovereignty
1. Parliament's legislative freedom is unbounded
2. Blackstone: "what the Crown in Parliament enacts is law"
ii. However - and this might be a bold claim - it is submitted that Parliament's legislative power has been
limited to some extent as a result of these reforms
1. In the aforementioned example of the devolution settlements, while the Westminster Parliament
remains supreme in the sense that it is theoretically possible for it to amend or repeal the Acts of
Parliament conferring power to the devolved regions, it is politically impossible to do so
a. Further reflected in the creation of the Sewel Convention
iii. Moreover, traditional notion of the courts having a limited role in constitutional matters is no longer true –
emerging idea of the ‘common law constitution’ – constraint on parliamentary sovereignty
1. Growth of judicial review fueled in part by unease about the workings of traditional constitutional
arrangements
a. Lord Mustill: courts have had to take on a more active role in order to avoid an
‘accountability gap’
b. Since the constitution is nothing other than a body of fundamental laws, it falls to the
judiciary to unpack the constitution as a system of ordered principles
c. Courts have also been willing to defend fundamental rights despite the absence of higher
constitutional principles
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