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Nicely presented and easy to follow. Topics include: Flexibility of UK Constitution, Separation of Powers, Parliamentary Supremacy and Judicial Review.
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PUBLIC LAW REVISIONFLEXIBILITY OF UK CONSTITUTION
Introduction
Definition of ‘Constitution’
A set of rules and principles which (wide sense):
a) Defines a state’s fundamental political principles
b) Establishes the framework of the government of the state; and
c) Guarantees rights and freedoms to citizens (right to free speech)
*Narrow sense: single written constitution
Features + Sources of UK Constitution
The most distinguishing features of the UK’s constitution (classification): definition of terms is essential
Uncodified and unwritten (no single authoritative document setting out the rules which establish and regulate government) as opposed to written in US
o Historically, there has never been a significant moment or break (revolution or civil war). The constitution has developed organically over time.
o Conceptually a written constitution does not fit in with the principle of Parliamentary Supremacy anything that Parliament would do would have to be viewed
through the prism of the constitution
Monarchical as opposed to republican (elected president as head of state in US): unelected monarch as head of state but generally does not interfere
Parliamentary as opposed to Presidential: system where we elect MPs who form a government in Parliament
Unitary as opposed to federal (power split between various individual states in US): single sovereign legislative body (Parliament is the supreme law-making body) with
concentrated power at the centre
o Some people argue that as a result of devolution, the UK constitution now exhibits quasi-federal characteristics
Flexible as opposed to rigid/entrenched: no special procedures to amend constitution (nebulous?)
Informal separation of powers: overlapping functions and personnel and no strict separation of each branch
Sources of the UK constitution: UK constitution is like a jigsaw, can be properly understood only when the pieces are fitted together:
1. Acts of Parliament
2. Case Law (judge-made)
3. Constitutional Conventions
4. Royal Prerogative
Outline of Argument
Due to its uncodified nature, the UK constitution demonstrates a fairly high degree of flexibility. It is relatively easy to change aspects of the UK constitution via normal legislative
procedures, with no special or complex arrangements being requirements for constitutional amendments.
Main Body
FLEXIBLE (easy to change + evolve) NOT FLEXIBLE
STATUTE (Legal)
DEFINITION
The most important source of the constitution because it is directed by the representatives of the people and it is considered to be the highest of the four sources. Legislation
enacted by Parliament. Acts must be passed by a majority vote in both houses of Parliament (HOC + HOL) and then given royal assent by the Queen.
1. Examples of ordinarily-enacted statutes which have made fundamental changes 1. Practical difficulties with statute repeal
to the UK constitution (same way as any other Act of Parliament): Statute which have had a large impact on the UK constitution (statutes of
a. Magna Carta 1215: first assertion of the limits on the powers of constitutional importance: Thoburn LJ) may legally be repealed.
monarch and of rights of individuals o However, in a practical sense it is nearly impossible to repeal them
b. Bill of Rights 1689: imposed limitations on the Crown’s powers to without great political, economic and social upheaval, suggesting the
interfere with Parliament, strengthening Parliament’s powers. constitution is not as flexible as it may seem.
c. Parliament Act 1911 ad 1949: enabled legislation to be enacted in
some circumstances without the consent of the House of Lords EXAMPLES EXPLANATIONS
d. European Communities Act 1972: incorporated EU law into the UK HRA 1998 The withdrawal of fundamental rights and civil
legal system liberties would likely provoke political and social
e. Scotland Act 2016; Wales Act 2017; Northern Ireland Act 1998: turmoil in the UK.
devolved power away from the Westminster Parliament- greater Scotland Act 2016; The reassertion of Westminster’s rights to
autonomy Wales Act 2017; legislate for Scotland, Wales and Northern Ireland
f. Human Rights Act 1998: incorporated the European Convention on Northern Ireland would be, politically speaking, impossible.
Human Rights into UK law Act 1998
g. Constitutional Reform Act 2005: reformed the office of Lord
Chancellor and created a Supreme Court to replace House of Lords 2. Slow enactment
2. There is no special procedure needed to amend or repeal Acts that will change The process of changing the constitution by enacting new statutes is a very lengthy
the constitution (of constitutional importance)- an ordinary legislative process of process. Coupled with the high pressures on Parliament’s time, this makes the
a simple majority in Parliament and Royal assent is used. Legally it is easy to constitution far less flexible and easily changeable than it appears on its surface.
change. Example to illustrate the protracted process of constitutional change: reform of the
3. This contrasts with other states, such as the US, in which for an amendment to House of Lords, Devolution (could abolish this legally but politically impossible),
be made to the constitution, a two thirds majority in Congress is required as well Acts of Independence (legally speaking could withdraw these Acts but realistically
as support from three quarters of the individual states- not very easy to change. would not be enforceable)
27 changes in 230 years.
3. Certain provisions stating that Parliament will not legislate to achieve certain aims-
provisions making it harder to change Acts
CASE LAW (Legal)
DEFINITION
Decisions of the courts establishing precedent.
1. Case law alters, adds to and impacts upon the UK constitution in three ways: 1. Difficult to change constitutional core principles (bound by precedent) things can
1 Judicial Interpretation of Statutes only be changed when issues get to the higher courts (Supreme courts)
Judges in their interpretation of Acts of Parliament may make o This is because lower courts are bound by precedent of higher courts
decisions that add new concepts to, or clarify areas of our 2. It would also be difficult to change as the courts would be reluctant to change core
constitution (interpretation of fundamental constitutional constitutional principles like rule of law, residual freedom and the right to a free
importance) hearing- matters that have been part of our society for a very long time.
EXAMPLE:
R v Secretary of State for Transport, ex p Factortame (Merchant
Shipping Act 1988 prevented Spanish Fishermen from fishing within
UK watersthe courts stated that the Act of Parliament conflicted
with EU law
2 Development of Common Law
The common law has been established by the courts dating back centuries
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