BPP University College Of Professional Studies Limited (BPP)
Notes which combine the BPP study notes, lectures and essay plans and points to note from tutorials. Takes you through the steps to answer a constitution essay question in an exam.
BPP University College Of Professional Studies Limited (BPP)
Graduate Diploma in Law
Constitutional and Administrative Law
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CON & AD LAW: UK CONSTITUTION – CHARACTERISTICS AND SOURCES
1) Tutorial Q: The British constitution is becoming considerably more rule based, rather less ‘political’ and rather
more ‘legal’. Critically analyse this statement
2) Consolidation Q: Should the UK have a codified constitution?
3) Revision Lecture Q: Lord Scarman: Today our written constitution is not ‘unwritten’ but hidden and difficult to
find….barely known to the public….the citizen lacks a constitution which he can read and understand and which
enables him, if need be, to claim a right which he can enforce. Critically evaluate this statement
4) Revision Lecture Q: Having a written constitution seems to be a matter of self-respect: no state is properly
dressed without one (F.F Ridley) Critically evaluate this statement: Do you think the British Constitution should be
enshrined in a single document?
5) Sample Paper Q: ‘Debates over the legal versus the political constitution, over a bipolar sovereignty of judges and
Parliament versus the singular authority of the latter, over a gradation of constitutional statutes and non-
constitutional statutes versus a flatland of ordinary laws, reflect continuing congestion at the centre of our
constitutional order … [which could be resolved by] the production of a written constitution’. Neil Walker, Our
Constitutional Unsettlement, 2014. Critically discuss the above statement
6) Sample paper Q: ‘Without conventions, the Constitution loses its modern, democratic mechanisms and becomes
no more than the bare frame of an old, still autocratically minded relic of the Glorious Revolution…’ David Jenkins,
International Journal of Constitutional Law (2009) Critically discuss the function and continued utility of
conventions in the UK constitution
7) Sample paper Q: ‘…in many respects, the Constitution which we have today would have been unrecognisable
to…Dicey. Some may think that this is the great virtue of an unwritten constitution – that it can change and
develop with changing times. Others may think that there are some things which it should be rather harder to
change than it currently is’. Lady Hale, The Bryce Lecture 2015: The Supreme Court in the United Kingdom
Constitution. Critically discuss the respective arguments
,CON & AD LAW: UK CONSTITUTION – CHARACTERISTICS AND SOURCES
STEP 1: Define Constitution
The Constitution is a difficult concept to define. A general description might be a set of rules and principles which:
- Define a state’s fundamental political principles
- Establishes the framework of the government of the state; and
- Guarantees rights and freedoms to citizens
STEP 2: Describe the UK’s Constitution
The most distinguishing feature of the UK’s constitution is that it is un-codified (i.e. unwritten) whereby there is no
single authoritative source or document setting out the rules, which establish and regulate government. Rather
the UK constitution is derived from various legal and non-legal sources, namely legislation, case law, the royal
prerogative, conventions and customs. The lack of an un-codified constitution derives from the absence of a critical
moment in history, such as a revolution, civil war, military defeat or topping of a regime that has rendered the
current constitutional order unsustainable and prompted citizens to reconsider the institutions and values
that bind their society together. In the absence of any such major upheaval, there has been neither reason nor
desire for the introduction of a codified constitution to establish new governing structures or to reinforce existing
arrangements. However constitutional arrangements in the UK have not remained stagnant but rather have been
constantly evolving over the last 800 years from a feudal monarchy to a constitutional monarchy to
parliamentary sovereignty.
Being un-codified makes the UK’s constitution unusual but not unique. Israel, New Zealand, Sweden and Saudi
Arabia also have un-codified constitutions. The uncommon position of the UK’s constitution has led many
academics to advocate the notion that the UK is without a constitution. Lord Neuberger (2014) stated ‘Unlike
every other European country, we have no written constitution… merely constitutional conventions, and as a
consequence of this that we have parliamentary sovereignty.’ This is not a novel idea. Many before him, including
Thomas Paine and Tocqueville, have asserted that England is without a constitution. Yet much has changed since the
time of 18th and 19th century political thinkers, both in terms of the laws in force and dominant scholarly opinion.
Dr. Mark Elliott (2014) challenges the this position: ‘It seems unlikely that Neuberger intended to argue that the UK
possesses no constitutional laws, given the obvious un-tenability of such a position. Rather, what Neuberger really
means is that the UK possesses no body of constitutional law that occupies a hierarchically distinctive or superior
position within the legal order.’ While the UK’s constitution is certainly unusual, it undoubtedly exists.
The UK’s constitution has, to a great extent, been written down. The assertion that there is no single
constitutional text is certainly correct but a constitutional text need not be restricted to a single document.
There are a number of statutes and conventions in the UK that are constitutionally relevant and could be said
to represent the UK’s written constitution
STEP 3: Sources of the UK’s Constitution
LEGISLATION
The current constitutional order in Examples of ordinarily-enacted statutes which have made fundamental changes to
the UK allows the government to the UK constitution include:
easily amend the constitution by 1. Magna Carta 1215: Represented one of the earliest attempts to restrain
merely enacting a statute via the the absolute power of the monarchy
ordinary legislative process (i.e. a 2. Bill of Rights 1689: Imposed limitations on the Crown’s powers to
simple majority in Parliament and interfere with Parliament. Strengthened Parliament’s powers
Royal Assent); there are no special 3. Act of Settlement 1701: Established the independence of the judiciary;
majorities or other arrangements showed early aspect of separation of powers
needed to pass laws 4. Parliament Acts 1911 and 1949: Recognition that the House of
Commons held primary power within Parliament. Enabled legislation to be
This stands in contrast to the US, enacted in some circumstances without the consent of the HoL
in which, for an amendment to be 5. European Communities Act 1972: Incorporated EU law into the UK legal
made to the constitution, a system won’t be around for much longer
proposal firstly has to be passed by 6. Scotland Act 1998: Devolved power away from the Westminster
, CON & AD LAW: UK CONSTITUTION – CHARACTERISTICS AND SOURCES
both houses in Congress (the Parliament to Scotland
legislature) with a two-thirds 7. Human Rights Act 1988: Incorporated the European Convention on
majority. The proposal then has to Human Rights (ECHR) into UK law. Important in the role it gives to the
be ratified by three-quarters of the higher courts in assessing whether public authorities, including central
individual states government, are acting compatibly with convention rights. This has meant
that courts have more de facto influence in interpreting and arguably
shaping legislation
8. Constitutional Reform Act 2005: Enhanced the status of the judiciary via
the introduction of the UK Supreme Court 2009
- Fixed-Term Parliaments Act 2011: There was a revival in interest in
reform when Nick Clegg and David Cameron came into power in the
coalition government when NC was head of policy changes
Some acts of Parliament have become recognised as having a special
constitutional status and cannot be repealed easily: Thoburn v Sunderland
City Council - Constitutional statutes include ECA 1972, HRA 1988, Magna
Carta and Bill of Rights 1689
The test for whether a statute is constitutional is the following:
1. Statute must condition the legal relationship between citizen and
state in some overarching manner
2. Statute must change the scope of fundamental constitutional rights
E.g. HRA 1988 clearly affects the relationship between citizens and the state. It
allows citizens to challenge actions carried out by public authorities, which are
incompatible with their convention rights
CASE LAW
Case law alters, adds to and impacts upon the UK constitution in the following 3 ways:
1. Judicial interpretation of statutes: Judges in their interpretation of Acts of Parliament may make decisions that
add new concepts to, or clarify areas of our constitution. E.g. ex p Factortame (No 1) and (No 2): The HoL
effectively suspended the operation of an Act of Parliament in conflict with EU law. Where a conflict exists
between UK and EU law, provisions of directly effective EU law will take precedence.
2. Development of the Common Law: The common law has developed key principles of the UK constitution such
as:
- Residual freedom: i.e. unless the law clearly prohibits it, a citizen is free to do/say whatever he wishes
- Actions of the state need legal authority: State officials (e.g. police, army) may not take action without legal
authority to do so, and may not act arbitrarily. E.g. in Entick v Carrington: Secretary of state issued a general
warrant for arrest and search of Entick, who allegedly publicised seditious material; held that the Secretary of
State had no legal authority to issue such a general arrest warrant. Actions of the state must have legal
authority; state officials cannot act in an arbitrary manner
- Legal disputes to be resolved by the judiciary: i.e. Case of Prohibitions 1607: Held that the monarch may not
make arbitrary rulings to decide legal matters, and that such disputes must be resolved by a court of law.
- Habeas corpus and individual liberty: The right of an individual to mount a legal challenge against unlawful
detention by the state (as of Art 5 HRA 1998, this principle is now also enshrined in statute)
A and others: Case involved challenge to provisions in the Anti-Terrorism, Crime and Security Act 2001
which permitted foreign national suspected of being involved in terrorist activities but against whom there
was insufficient evidence to bring criminal proceeding to be detained indefinitely without trial; HoL held
such detention was unlawful and a breach of the ECHR. An individual who has been detained by the state
has the right to have the legality of that detention tested before a court. Courts will make a declaration of
incompatibility where domestic legislation is incompatible with EU law.
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