UK CONSTITUTIONAL LAW 2020-2021:
PART I: INTRODUCTION TO THE UNITED KINGDOM CONSTITUTION
LECTURE 1: THE NATURE AND PURPOSE OF CONSTITUTIONS
Roger Masterman
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Essential Reading
Masterman and Murray, chapter 1.
Anthony King, The British Constitution (2007) chapter 1 (‘What is a Constitution?’)
(available as a digitised chapter on DUO, under the ‘library resources’ tab).
Additional Reading
Tomkins, Public Law (Oxford: Clarendon, 2003), ch.1.
Munro, Studies in Constitutional Law (2nd ed 1999), ch.1.
V. Bogdanor, The New British Constitution (2009), chs.1 and 2.
F.F. Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’
(1988) Parliamentary Affairs 340.
Something different
David Baddiel Tries to Understand the Constitution:
https://www.bbc.co.uk/programmes/b096j4m2
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Key Issues:
Constitutions are concerned with the allocation and regulation of governmental
powers within a state.
A constitution will – typically in liberal democracies – divide governmental power
between three branches of the state; the executive, the legislature and the
judiciary.
Constitutional law is therefore the body of law which determines the exercise
and control of governmental power between both the institutions of
government and between those institutions and the individual.
1: THE NATURE AND PURPOSE OF CONSTITUTIONS: AN OVERVIEW
A: What is a constitution?
Thomas Paine, The Rights of Man (1790):
‘…a constitution is a thing antecedent to a government; and a government is
only a creature of a constitution’.
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, A King, The British Constitution (OUP 2007) 3:
‘the set of the most important rules and common understandings in any given
country that regulate the relations among that country’s governing institutions
and also the relations between the country’s governing institutions and the
people of that country’.
FF Ridley, ‘There is no British Constitution: A Dangerous Case of the Emperor’s Clothes’
(1988) 41(3) Parliamentary Affairs 340, 342:
‘a special form of law embodied as a matter of convenience in a single
document’.
JAG Griffith, ‘The Political Constitution’ (1979) 42(1) MLR 1, 19:
‘the constitution is no more and no less than what happens. Everything that
happens is constitutional. And if nothing happened that would be constitutional
also’.
B: What do constitutions do?
Three key Functions:
i) Establishing the structures of government;
ii) Setting out the powers the government can exercise;
iii) Defining the relationship between the individual and the state.
T Paine, The Rights of Man (1790):
‘A constitution is not the act of a government, but of a people constituting a
government, a government without a constitution is power without right.’
SE Finer, V Bogdanor, B Rudden, Comparing Constitutions (Clarendon Press 1995) 1:
‘[Constitutions are] codes of norms which aspire to regulate the allocation of
powers, functions, and duties among the various agencies and officers of
government, and to define the relationship between these and the public’.
A Tomkins, Our Republican Constitution (Hart Publishing 2005) 3).
‘[The purpose of a constitution is] to check the government.’
C: Establishing institutions and allocating/limiting power
(i) Allocation of power between national institutions of government:
Most constitutions define the institutions of the state, how they are composed, and what
their powers are. In particular, they typically seek to distinguish between the three core
functions of government:
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