Sources of UK const Flashcards
LECTURE-What is public law?
Law deal with constitutions and functions of central & local govern, rels btw individs and state & rels btw individs that are direct concern to the state.
LECTURE-What is private law?
Law deals w rels that are of no direct concern to state.
LECTURE-E.g.s of public law?
council/state-
LECTURE-E.g.s of private law?
family proceedings (private parties) contractual claim (individs +businesses)
SEMINAR-What is a constitution?
- A constitution is a set of rules governing how members of a group or organisation (eg sports club) should behave e.g sports clubs
- The constitution of a country is a little different, although it is still, essentially, a set of rules governing how the country operates and who makes the rules
SEMINAR-constitution of a country key matters inc?
how government works, the role and powers of different branches of state, and the rights of citizens
SEMINAR-why should a state have a constitution at all?
Debate between formalist and substantive theorists -Formalist theorists believe a constitution should make governmental bodies and give a clear framework of rules so that individuals are clear how they should behave
-Substantive theorists believe a constitution should go beyond giving a clear framework of rules but should also guarantee fundamental values e.g democracy and human rights, and provide protection for individuals against both the State and fellow individuals
SEMINAR-what best describes the UK constitution?
Unwritten- we mean the UK Constitution is not contained in one book or series of books which citizens within that constitution could read for themselves
Monarchical
Unitary (but note impact of devolution)
Flexible
SEMINAR-How many sources does the UK Constitution have? Can you list them?
7 sources
- statute
- case law
- the royal prerogative
- constitutional conventions
- academic works
- EU law
- the ECHR
SEMINAR-what main domestic sources of the UK constitution are?
- Statute
- Case law
- The Royal Prerogative
- Constitutional Conventions
SEMINAR-what are one of the 7 sources is unwritten?
constitutional conventions - it is fact in literal sense mostly written= uncodified
SEMINAR-the sources of the UK Constitution, how flexible is that source and how easy would it be to change it?
This could suggest that sources that make up the uk const can be changed quite easily without much in way of const formality. So uk const= flexible to adapt to social values than written/codified const.
But it is important to remember there is a big difference between legal flexibility and real / political flexibility where the three legislative sources - statutes, EU law and the ECHR - are concerned
SEMINAR-how flexible is statute?
: Legal flexibilty
Uk can enact new and change existing statutes with majority and ra whereas without special procedures whereas US const is legally entrenched as only can be changed following procedures needing specified majorites.
political reality
big difference btw the two although its easy to amend for several reasons and electoral system ensures gov has majority of mps in reality pm may not due to fear of being unpopular to be reelected
Two examples of areas where it might be politically difficult to take back powers once granted are:
-devolution of powers d to Scotland and Wales in 1998 - although there are far more English people in the UK than
Scots and Welsh so not impossible
Acts of Independence: practically impossible to revoke
SEMINAR-how flexible is case law?
-The legality versus political reality distinction does not apply to this or any of the following three non-legislative sources.Traditionally, the courts have safeguarded basic individual rights such as freedom of speech and habeas corpus (eg in Entick v Carrington 1765, they established the principle that actions of the state must have legal authority)
- But the Judiciary is also able to change the constitution through their interpretation of the law e.g.s of case law being flexible are:
- courts can change to reflect social standards
- uk judges can now use purposive method of intep of stat to loosen literal approach to interp law
limitations:
- the Judiciary’s decisions are subject to the doctrine of precedent
- Parliament may legislate to overturn judicial decisions (eg with War Damage Act 1965 after Burmah Oil v Lord Advocate 1965) where Parliament did so retrospectively, thereby going against the Rule of Law
SEMINAR-how flexible is royal prerogative?
Royal Prerogative means those powers once exercised by the monarch which are now ‘legally’ left in the hands of the Crown
But there is little flexibility because:
*no new prerogative powers can now be created
*the very existence of prerogative powers may be limited by statute (eg the Crown Proceedings Act 1947 abolished Crown immunity in tort and contract)
SEMINAR-how flexible is constitutional conventions
const conventions are morally binding not legally binding rules of const behaviour which are occasionaly recognised/enforced by courts (AG v Jonathan Cape 1975)
In CCSU, Lord Roskill identified the following PP as being ‘non-justiciable’ areas of high policy:
*best thing about conventions is their flexibility b.c not being written down they can dissappear or alter without special procedure but arguably not flexible as some are so deep rooted ed monarch granting assent that they have become set in stone
SEMINAR-how flexible are academic works?
little flexibility with academic works as udges tend mostly to refer to works written by constitutionalists such as Albert Venn Dicey, who are now dead and so can no longer update their thoughts! but could be flexible in judges interp of them.
SEMINAR-how flexible is eu law?
-Legally
Legislation which makes fundamental changes to our constitution – in this case the European Communities Act 1972 – may be enacted and repealed in the same way as any other statutes
Political Reality
Although it tends to be easy for the Government to amend
In the case of the European Communities Act 1972, there are strong economic, and even social, reasons why the Prime Minister might be reluctant to repeal it - would the Government lose the votes
SEMINAR-How flexible is the ECHR and how easy would it be to change it?
Legally
Legislation which makes fundamental changes to our constitution – in this case the Human Rights Act 1998 – may be enacted and repealed in the same way as any other statutes
Political Reality
Although, legally, it tends to be easy for the Government to amend legislation, in reality, the PM may be discouraged from doing so in the case of the Human Rights Act 1998 because there are strong social reasons why the Prime Minister might be reluctant to repeal it
SEMINAR- What advantages and disadvantages were the UK to follow most other countries in the world - such as the USA - and adopt a written (or codified) constitution?
- Uk has not experienced the same as the french revolution or the us war of independence a.k.a constitutionalist e.g bogdanor term a ‘constitutional moment’.Other than Cromwell’s brief Republic, the UK has never really needed to make a fresh start for a new const doc.
- Bogadnor argues no need for written const in uk due to principle of sov of parl because the whole point of such a doc is to limit the power of Parliament
EXTRA :Us= written/codified &it sets out 3 branches of state: Executive (President), Legislature (Congress) and Judiciary (Supreme Court)it also provides for system of checks and balances so that no one branch exercises too much power
SEMINAR- Arguable advantages if the UK were to adopt a written constitution?
- A clear definition of role and functions of each branch of state would achieve a formal Separation of Powers between the legislative, executive and judicial branches of state
- ‘higher’ law against which all other legislation may be judged
- It could give a clear statement of specific civil liberties and rights of citizens which the Government cannot infringe
- It could provide legal certainty and clarity for citizens as to who does what within the Constitution and what the rights of the citizen
SEMINAR-Arguable disadvantages if the UK were to adopt a written constitution:
If it ‘ain’t broke, don’t fix it – why change something that has worked for centuries?
- It would lose its flexibility and ability to adapt quickly to changing social values e.g usa and gun laws
- nothing is entrenched within the current UK Constitution and so we are, in Bogdanor’s words, ‘saved from being bound by the preconceptions of our forebears’
- It might place excessive power in the hands of the Judiciary
- may lose judicial indepedence
- How disruptive and time consuming would it be to draft a codified constitution?
SEMINAR-Conclusion to Activity 2?
The main advantage of a written / codified constitution is it provides protection / certainty
The main disadvantage of a written / codified constitution is it lacks flexibility / adaptability
SEMINAR-summary example?
We have learned that:
the UK Constitution has seven sources, and
the key characteristics of the UK Constitution are that:
it’s unwritten / uncodified - and therefore flexible and adaptable but arguably vulnerable and uncertain
Parliament rather then the constitution itself is supreme
