BPP GDL – Constitutional & Administrative Law Exam Notes
Constitution
A constitution may be understood as the formal statement of the relationships between the
institutions of the state – the legislature, the executive and the judiciary. Set of arrangements detailing
the role and legal powers of the state, and the relationships between state and citizen. It should define
the parameters of state power and place legitimate limitations on the power of government.
Functions of the State
a) The Legislature – The body that enacts new law and modifies, repeals or amends existing law.
b) The Executive – The body that formulates and implements policy within the law.
c) The Judiciary – This is the body responsible for the enforcement of law and the adjudication
of disputes between individuals, and also between individuals and the state.
Function/Purpose of a Constitution
- Broadly speaking, it is to ensure the allocation of power amongst the various bodies that
compose a state and between the state and its citizens. It can also be argued that a
constitution exists to ensure citizens are governed in accordance with democratic principles
and that those who govern have legitimacy for their actions. This is called ‘constitutionalism’.
- The principle of constitutionalism broadly suggests:
• The limitation of power – The exercise of power must be within the legal limits.
Further, that the exercise of power must conform to notions of respect for individuals
and individual rights.
• The separation of powers – Power is dispersed so as to avoid excessive concentration
and abuse of power.
• The doctrine of responsible and accountable government: that the government is
accountable to the people (electorate) on whose trust power is held.
Classification of Constitutions
Written/Unwritten
- A written constitution is traditionally seen as one formulated within a single document.
- The UK in contrast does not have a traditional written constitution. Cannot be found in any
single, or even a small group of documents as evolved over many centuries. Despite this,
clearly is a constitutional state as has a body of rules, both written and unwritten, which
allocate the functions of the state.
Rigid/Flexible
- In a rigid or entrenched constitution, constitutional law can only be amended through special
procedure. As such, constitutional law has higher status than all other forms of law.
- In a flexible constitution, constitutional laws can be amended in the normal way – no special
procedure is required.
- In the UK, Parliament is the supreme law-making body and it can pass, amend or repeal any
law with a simple majority. No special mechanisms are necessary to change important
constitutional laws in the UK.
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,Supreme/Subordinate
- A supreme constitution is one where the legislative powers of the sovereign body are
unlimited. Conversely, where the powers of the sovereign body are limited by some higher
law, the constitution is said to be subordinate.
- As mentioned above, in the UK the Westminster Parliament is the supreme law-making
authority. However, the UK’s membership of the European Union has raised some tensions in
this context.
Unitary/Federal
- A unitary constitution has the majority of its legal and executive power vested in the central
organs of the state. In the UK, most power is centrally controlled in Westminster. However,
some power is devolved to regional bodies, for example local authorities; through devolved
Parliament in Scotland and the Assemblies in N Ireland and Wales since 1998.
- The devolved nations have significant but limited jurisdiction in certain areas: their power is
given by an Act of the Westminster Parliament, and the power to repeal those Acts remains
with the Westminster Parliament. In short, they are subordinate to a supreme Westminster
Parliament.
Separate/Fused Powers
- One of the principles of constitutionalism is that power should be divided and dispersed in
order to prevent abuse of power by those in control (the theory of separation of powers). A
separated constitution refers to one which conforms more fully to the theory of separation of
powers.
- The UK’s constitution is difficult to classify in this regard. A number of commentators argue
that it is fused due to the significant overlap between the government and Parliament,
because the government is formed very largely from members of the majority party
represented in Parliament. Other commentators argue that the UK does adhere to a
separation of sorts: there are clearly identifiable and distinct bodies exercising legislative,
executive and judicial functions. There is overlap, but not to the degree indicated by some.
Saying that the UK constitution is fused is too simplistic a categorisation, particularly given a
number of notable recent reforms.
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, Sources of the UK Constitution
Legal Sources of Constitutional Law
Legislation
- Acts of Parliament are the primary source of constitutional law in the UK. Traditionally all
statutes in the UK were seen to have the same status, as they are enacted in the same way.
- None are formally entrenched and all can be repealed by a simple majority in Parliament. As
a result, determining which statutes are constitutional is not immediately obvious; it is a
question of what the subject matter of the Act in question concerns. In recent years, some
Acts of Parliament have become recognised, though, as having a special constitutional status
– Thoburn v Sunderland CC. Parliament Act 1911 and 1949, ECA 1972, Scotland Act 1998, HRA
1998.
Royal Prerogative
- This was defined by Dicey as ‘the residue of discretionary or arbitrary authority, which at any
given time is legally left in the hands of the Crown’. Prerogative power is a form of power,
recognised at common law, which has or can have constitutional significance. It comprises all
the privileges and immunities recognised at common law as belonging to the Crown.
• Parliament can legislate to modify, abolish or simply put on a statutory footing any
particular prerogative power e.g. Fixed Term Parliaments Act.
• De Keyser principle – Statute > Prerogative.
Judicial Precedent
- Many principles of constitutional law have originated from the decisions of the courts in the
ordinary course of litigation, through the creation of common law.
Non-Legal Sources: Constitutional Conventions
Definition and Nature of Conventions
- One of the characteristics of constitutions in general is that they contain significant areas that
are governed by conventions rather than by strict law. This is a particularly notable feature of
the UK constitution: many of its important features are regulated by convention alone.
- Dicey argues are just understandings, habits of practice, which though may regulate the
conduct of officials, are not really laws.
- Jennings argues conventions are actual binding rules of behaviour, albeit not legally
enforceable.
- AG v Jonathan Cape – Confirmed traditional orthodoxy that a court of law would not enforce
a convention directly.
- Conventions do not mature into a rule of law. Conventions are political in inception and
depend on a consistent course of political recognition. However, not complying with
conventions can be unconstitutional.
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, Examples of Conventions
a) Conventions relating to the legislature
§ House of Lords should defer to the House of Commons.
§ New ‘War Powers’ convention now applies whereby the prior approval of the House
of Commons is required before UK troops are committed into military action. This
emerged after the vote in 2003 to commit forces into Iraq and became more
established after the parliamentary vote in 2013. Degree of controversy in relation to
scope of convention.
b) Conventions relating to the Executive
§ The monarch should not exercise her legal right to refuse to give ‘Royal Assent’ to bills
passed through Parliament.
§ Collective and individual ministerial responsibility.
c) Conventions relating to the Judiciary
§ Not to be politically active.
d) Conventions relating to the Commonwealth and Devolved Governments
§ UK Parliament should not legislate for an independent Commonwealth nation unless
state has requested and consented to it.
§ Sewel Convention – 1998, UK government would expect a convention to be
established that Westminster would not normally legislate with regard to devolved
matters in Scotland without the consent of the Scottish Parliament.
Purpose/Rationale of Conventions
- They are a flexible means of changing and developing the constitution informally. According
to Jennings, conventions ‘fill the gap’ in the UK’s constitution.
- They define and modify legal powers, regulate the authority of the Crown and underpin the
operation of the Cabinet system.
- They also help to control and provide accountability of the Executive.
Breach?
- If conventions are not legally enforceable, why are they followed? Conventions exist for a
number of reasons. If one adheres to the Jennings arguments, conventions are prescriptive
and impose an obligation that they should be followed. If they are not followed, however, the
consequences are likely to be political rather than legal.
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