Characteristics of the UK constitution Flashcards
What is the purpose of a constitution?
There is no single definition of what constitutional arrangements are for but there are generally considered to be certain core objectives and principles inherent in the idea of ‘constitutionalism’.
· Exercise of government power should be within legal limits, and accountable in law.
· Power should be dispersed between the organisations of the state, so that it does not become concentrated in one body or person.
· Government should be accountable to the people.
· Fundamental rights and freedoms of citizens should be protected.
In essence: formalist account:
a system of rules that provides for state bodies, confers powers and duties, limits and controls (hence defines functions). In doing so defines the relationships between state bodies and individuals.
This doesn’t mention rights though a la substantive approach.
Was the UK constitution designed?
The unusual nature of the UK’s constitution is that it has not been the product of such forces. Instead, it has evolved over a considerable period of time in an unplanned way. Nevertheless, it is generally believed that the UK is a constitutional state with rules that regulate state power.
The leading British constitutional theorist, and author of the ‘Introduction to the Study of the Law of the Constitution’ (1885), Professor Albert Venn Dicey, referred to:
“That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state”
Define ‘Sovereign power’.
The word ‘sovereign’ in constitutional law has more than one meaning.
It originally meant simply the monarch: the King or Queen. Today, it can still be used in this way. However, it is also understood to refer to the source of primary authority or ultimate power in the state.
“That set of rules which directly or indirectly affect the distribution and exercise of sovereign power in the state”
How is power divided between the different organisations of the state?
The functions of a state can generally be divided into three distinct areas:
· The Legislature
· The Executive
· The Judiciary
Define ‘The Legislature’:
The legislature is the body that enacts new law, and repeals or amends existing law.
In the UK, this function is said to be carried out by ‘the King in Parliament’. In practice, this means the House of Commons and the House of Lords; the King’s role is limited to granting ‘royal assent’ to new laws.
As you will see, it is the UK’s legislature – Parliament – which is the sovereign body in the state.
Define ‘The Executive’.
This is the body or bodies which formulate and implement policy within the law.
In the UK, the executive consists of the Prime Minister and Cabinet, the various government departments, a politically neutral civil service, and other bodies carrying out government functions at the local level, i.e. local authorities or ‘councils’.
Define ‘The Judiciary’
This is the body of judges of all levels of seniority, who are responsible for the enforcement of criminal and civil law and the adjudication of disputes between individuals, as well as between individuals and the state.
The constitution of the UK is…
… “uncodified” in a single document.
Where do our constitutional rules come from?
· Legislation
· Case law
· (Constitutional) Conventions
How do constitutional rules come from legislation?
Acts of Parliament are the primary source of constitutional law in the UK. However, not all Acts of Parliament are constitutional – this classification depends entirely on the subject matter of the legislation.
In Thoburn v Sunderland City Council [2002] 3 W.L.R 247 (p.62), Laws LJ suggested:
“[W]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and ‘constitutional’ statutes […] in my opinion a constitutional statute is one which (a) conditions the legal relationship between the citizen and the state in some general, overarching manner and (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”.
He went on to list some examples you will be familiar with:
· The Magna Carta 1215
· The Bill of Rights 1689
· The Human Rights Act 1998
How do constitutional rules come from Case Law?
Many principles of constitutional law (specifically, the rights of citizens in the face of action by the state) have originated in the courts through the creation of common law.
Entick v Carrington (1765) 19 St Tr 1029
Entick, who was suspected of writing seditious, anti-government pamphlets, had his property searched by agents of the King “with force and arms”. Entick sued the agents for trespass. The agents’ defence was that they acted on the authority of a warrant from Lord Halifax, one of the King’s Ministers.
The trial judge was Lord Camden, Chief Justice of the Common Pleas, who found for Entick, holding that Lord Halifax had no recognised right under statute or case precedent to issue a search warrant.
This judgment established the fundamental constitutional rule that the state cannot exercise power unless that power is expressly authorised by law.
How do constitutional rules come from conventions?
Conventions are an important feature of the constitutional mix in the UK. They are rules about the conduct of government which fall short of being enforceable laws but are still agreed upon and are intended to be respected.
Conventions can be described as:
- Informal rules of political practice.
- Developed in an evolutionary way, according to the political standards of the time.
- Without any clear source in legislation or case law.
An example is that the King does not refuse royal assent to Bills of Parliament once they have passed the House of Commons and the House of Lords.
How is the constitution flexible?
As the UK constitution is not codified and has evolved over time, it has the capacity to continue to change and evolve without – in most cases - recourse to any special legislative procedure. All that is potentially required for a significant change in constitutional arrangements is an Act of Parliament.
Why are some constitutions inflexible?
In contrast, in an ‘entrenched’ constitution, the constitution is the highest form of law. Amendment of the constitution is deliberately made harder than amendment of standard law.
In the United States, for instance, constitutional amendments must be passed by a two-thirds majority in both houses of Congress (the legislature), and be subsequently ratified by three quarters of the individual states. (This represents a particularly heavily entrenched constitution. Many other countries have forms of entrenchment of their ‘rulebook’ but not necessarily to the same extent.)
The advantage of an entrenched constitution is certainty and greater constitutional stability. The disadvantage can be rigidity and constitutional stalemate.
The UK constitution is…
… uncodified
