Politics Notes Unit 2 AS Elliott Highmore
Chapter 6: The Constitution
The Purpose of a Constitution: the rules that govern government, just as governments lays down
laws for society, the constitution rules the rulers, gives a practical expression to the principle of a
limited government, they are a relatively recent development, the first written constitution was the
US Cons. of 1787, the Act of Settlement in the UK in 1701, both of which helped to transfer power
from the king to parliament in the aftermath of the Glorious Revolution.
1. seeks to establish the duties, powers and functions of the various institutions of government
2. regulate the relationships between and among the constitutions
3. define the relationship between the state and the individual, that is, define the extent of civil
liberty
Types of Constitution:
• Codified and uncodified constitutions-
traditionally emphasis has been compared to written and unwritten constitutions, however this
distinction has always been misleading;
- no constitution is entirely composed of formal rules that are legally enforceable, even where
written documents exist, these do not, and cannot define all aspects of constitutional practice,
this leads to a reliance on unwritten customs and practices.
- no constitution is entirely unwritten, it is a mistake to classify the UK constitution as unwritten, as
discussed below, statute law is the most significant source of the constitution.
a codified constitution is one that i based on the existence of a single authoritative document that
lays down the core principles of government, it may also include a statement of citizens rights and
freedoms, possibly in the form of a bill of rights, some countries value codified constitutions.
1. the document itself is authoritative, in the sense that it constitutes higher law, the highest law of
the land, the constitution binds all political institutions including those that make ordinary law,
giving rise to the two tier legal system in which the cons stands above statue law made by the
legislature
2. the provisions of the constitution as laid out in the codified document are entrenched, in the
sense they are easily difficult to amend or abolish, the procedure must make way for making
and changing the constitution must be more difficult than changing ordinary laws
3. as the cons. sets out the duties powers and functions of a government, institutions in terms of
‘higher’ law it is judicable, this means that all political bodies are subject to the authority of the
courts, and in particular a supreme court
an uncodified constitution has become increasingly rare, only three liberal democracies continue to
have uncodified constitutions however the intonation of the constitution act of 1986 and the
adoption in 1990 of a bill of rights has been interpreted by many commentators as indicating that
the New Zealand cons. is no longer uncodified.
1. the constitution is not authoritative, cons laws enjoy the same status as ordinary laws, states
have an uncodified constitutions therefore have single tier legal systems with no form of higher
law
2. uncodified constitutions are not entrenched, the cons can be changed through the normal
processes for enacting statute law, this is reflected in the UK in the principle of parliamentary
sovereignty through which parliament can make, unmake and amend any law it wishes,
including laws that affect the cons.
3. uncodified cons are not judiciable in the absence of higher law, judges do not have a legal
standard, against which they can declare that the actions of other bodies are uncons. or cons.
• Unitary and federal constitutions-
cons. laws have also been classified in terms or their content as specifically by the institution or
structure they underpin, the most likely used classification is between unitary and federal
constitutions.
unitary constitutions: establish the constitutional supremacy of central government, over provincial
local bodies, they do this by vesting sovereignty in the national legislature meaning that it can
create or abolish, strengthen or weaken, all other institutions. In the UK this is reflected in the fact
that parliament possesses at least in theory, unchallengeable legislature authority. Devolved
assemblies do not have this.
,Politics Notes Unit 2 AS Elliott Highmore
federal constitutions: divide sovereignty between two levels of government, central government
and regional government possess a range of powers that the other cannot entrench on.
• Rigid and flexible constitutions-
an alternative form of classification is based on the ease with which the constitution can be
changed, codified constitutions are relatively inflexible, uncodified ones appear to be flexible and
adaptable, because their provisions are entrenched in higher law. Because laws of constitutional
significance, can be changed through ordinary legislature process:
1. codified constitutions can exhibit a surprising degree of flexibility, does not apply in formal
process of amendment, judicial interpretation, the US Cons means whatever the Supreme
Court says.
2. some aspects of the UK’s codified cons have remained remarkably resistant to change,
parliamentary sovereignty, cons. monarchy, with the formal powers of the monarchy, Royal
Prerogative.
The UK Constitution:
until the 1970’s, the UK cons. was widely admired, tended to be seen as the historical glue that
linked present and the past, many abroad looked with envy at the UK, the recession and EC and
clashes between gov. and union, concerns were raised about the UK’s government, and about the
cons. in particular.
• Sources of the Constitution: the UK Cons. is one of the best of its kind, over time it has became
more uncodified, but mainly written, there is no single authoritative document in the UK, the rules
and principles of the cons. however can be found in a variety of places.
- Statute Law- made by parliament, acts, not all significant, this applies because the principle of
parliamentary sovereignty, implies that statutes outrank other sources of the cons. if a statute
conflicts a convention, the statute will prevail, common laws become statutes. 1998 HRA
- Common Law- refers to a body of laws based on tradition, custom and precedent. the ultimate
source is long established legal practises, while statute law is made by politicians, common law
is sometimes made by judges.
1. royal prerogative, formal powers of the crown
2. traditional rights and freedoms, HRA, residual rights
- Conventions- is a key unwritten element within the constitution, being non legal they often lack
clear and unambiguous definition, there is a convention that the government will resign or call a
general election if defeated on a major bill by the House of Commons. But there is debate about
what constitutes a major bill. The convention that Royal Assent is always granted is upheld by
the monarchs desire not to challenge the democratic will, constitutional conventions tend to
assume historical authority, as they become based on custom:
1. the exercise of crown powers
2. appointment of the prime minister
3. individual ministerial authority
4. collective ministerial authority
5. use of referendums to approve major constitutional changes
6. parliament consulted prior to the UK going to war
- Works of Constitutional Authority- the UK cons is the need to consult works by authors who are
considered to be authorities on constitutional issues, these define what is correct or proper. Not
legally enforceable for two reason:
• many gaps and confusions in the UK’s uncodified constitution with in the case of conventions,
uncertainty about how general rules and principles should be applied in practise
• these authoritative works carry out the job of interpretation, saying that the cons. actually means
carried out by senior judges
• for example, Walter Bagehot’s ‘The English Constitution’, Thomas Erskine’s ‘Treatise on the Law’
- EU Laws and Treaties- in joining the EEC in 1973 the UK became subject to the body of
European Laws, and treaties, the significance of this has grown as the years go on:
• The Treaty of Rome 1957
• Single European Act 1986 - single market within the EU
• Treaty on European Union 1993
• Treaty of Lisbon 2009 - modified version of the proposed cons. treaty
, Politics Notes Unit 2 AS Elliott Highmore
• Principles of the Constitution:
- Parliamentary Sovereignty- sovereignty is a key concept in all constitutions, this is because it
defines the location of the supreme constitutional power, if cons. define the duties, then powers
and functions of the various institutions of government, the sovereign body has the ability to
shape the constitution itself. In this way it defines the powers of subordinate bodies.
Parliamentary sovereignty is a form of legal sovereignty, parliamentary sovereignty is rhe
absolute and legal authority of parliament, based on:
• absence of a codified constitution
• the supremacy of statue law
• absence of rival legislatures
• no parliament can bind its successors
- parliament is not and has never been legally sovereign, constrains on this include, pressure
groups, public opinion, the views of major trading partners, the policies of international
organisations. popular sovereignty can be seen, the establishment of popularly elected devolved
assemblies, and in more clearly define citizens rights, particularly in the Human Rights Act.
- The Rule of Law- second key principle of the UK constitution it has been seen as an alternative
constitution showing that even in the absence of higher law, government is still subject to legal
checks and constraint, government in short is not ‘above the law’.
- Parliamentary Government- the UK cons. structure is based on a fusion of powers between the
executive and parliament, overlapping and interlocking institutions, in effect governs in and
through parliament, the close relationship between government and parliament can lead to a
situation in which the executive can use the sovereign power of parliament for its own ends,
elective dictatorship.
- Constitutional Monarchy- although the monarchy lost its absolute power long ago, it remains a
significant body in the UK. during the 19th century most of the monarchs remaining powers was
transferred to ministers, ‘dignified’ parts of the cons. played a vital role in meaningful political
power, as a symbol of political unity above the rough and tumble of conventional party politics.
- EU Membership- growing cons. implications, focused on whether parliament can be viewed as a
sovereign legislature, best understood as parliamentary sovereignty within the context of EU
membership.
• european law is higher than statute law
• some eu bodies has supranational powers
• decline of the national veto
• in joining the eec. in 1973 parliament did not and couldn't bind its successors
• european integration has not eroded parliamentary sovereignty so much as pooled it
• Strengths of the UK Constitution:
- Flexibility- one of the chief strengths of UK cons. is that it is flexible and easy to change, easier
and quicker to introduce an act of parliament than to amend say the US cons. arises from the
fact we are not entrenched, this occurs because it can adapt and respond to changing political
and social circumstances.
- Democratic Rule- the UK’s long period of unbroken democratic rule is often seen as evidence of
the strength of its cons. system. changes to cons. come around from democratic pressure,
similarly the powers of the House of Lords were reduced through the parliament acts, because
of a growing belief the upper house should be able to block policies of elected govs. judges are
in no way accountable.
- Effective Government- given the absence of a written constitution government decisions that are
backed by parliament cannot be overturned by the judiciary, the UK’s system of parliamentary
government baed on westminster model usually means that governments get their way in
Parliament. The concentration of power in the hands of the executive within the parliamentary
system allows UK governments to take strong and decisive action.
- History and Tradition- argument most associated with conservative thinkers, in their view a key
strength of the cons. is that being based on tradition and custom, links present generations to
past generations because of the common law and conventions in particular, constitutional rules
and principles have been ‘tested by time’ and therefore been shown to work. This can be most
clearly seen in dignified aspects of the cons. such as the monarchy and the House of Lords.
