State, Constitutionalism and the Sources of Constitutional Law

Question 1

Where is the constitution to be found in the UK?

Answer 1

There is no written constitution in the UK. Instead the constitution is found through legislation, common law, conventions (not legally binding but if they are not abided to, they will receive scrutiny from the media) and international law. Furthermore, what the Queen enacts is law.

Question 2

What test is used to identify conventions?

Answer 2

The Jennings Test: 1. How strong is the precedent; 2, actors are bound by to what extent; and 3. what is the reason.

Question 3

How is the UK constitution different from other countries?

Answer 3

The UK’s constitutional arrangements have no special legal status. This means it doesn’t enjoy a degree of permanence (other countries require a very high majority for reforms), other laws don’t exist in its shadow and fundamental constitutional values don’t hold a brake on government because there is no body of constitutional law or principle that is hierarchically superior to ordinary law. The government can therefore, by causing legislation to be passed, do anything – even if that involves contradicting long-established constitutional principles or rights that people regard as fundamental.

Question 4

How is the Irish constitution reformed?

Answer 4

By referendum only.

Question 5

How is the US constitution reformed?

Answer 5

2/3 agreement in the Senate and House of Representatives and 3/4 agreement by all state legislatures.

Question 6

What are the three fundamental principles in the UK?

Answer 6

Parliamentary sovereignty, the rule of law and the separation of powers.

Question 7

What are the benefits of a flexible constitution (like the UK)?

Answer 7

1. It is easier and quicker to amend.

2. The constitution can stay relevant and up to date – can fit to changing social and political circumstances.

Question 8

What are the problems of a flexible constitution (like the UK)?

Answer 8

1. Limits the ability of an abuse of power as it is not easy and quick to change the constitution.
2. The constitution also represents fundamental rights that usually don’t change and are ingrained in our society therefore there is often not much need to change them.

Question 9

Name four arguments for a written constitution.

Answer 9

1. It makes rules clearer as key constitutional rules are collated into one single document. It would create less confusion and they could be enforced greater.
2. It would end parliamentary sovereignty which would mean Parliament couldn’t abuse their power. Furthermore they wouldn’t be able to amend the constitution.
3. It has an educational value in teaching the central values and overall goals of the political system.
4. It would protect rights – individual liberty would be more secured because a written constitution would define the relationship between the state and its citizens.

Question 10

Name five arguments against a codified constitution.

Answer 10

1. The constitution is not flexible and therefore hard to amend.
2. It could lead to judicial tyranny and democratic rule because judges would be policing the constitution (unelected and not socially representative) rather than changes coming about due to democratic pressure – representing the values of the citizens.
3. A written constitution would undermine one of the UK’s key principles of democratic of parliamentary sovereignty as the constitution would act as a higher source of law. Therefore Parliament would not be able to make, amend or repeal any law.
4. It is not necessary – written constitutions may not be the most effective way of limiting government power – improving the checks and balances in our political system may be a better way.
5. It would be expensive to enact.