Uncodified Constitution

Question 1

Nature of the UK uncodified constitution

Answer 1

‘The power of the state’. The UK constitutional arrangement is unwritten.

Establishes:
Major institutions of the government
States their principal powers
Regulates exercise of those powers.

Question 2

Marshall (2004) - 4 Distinguishable senses of a constitution:

Answer 2

Legal and conventional rules providing the framework of the government.

Single instrument by generally agreed authorization.

Totality of legal rules.

List of entrenched statutes/instruments.

Question 3

King (2007) - Political doctrine stands on three pillars:

Answer 3

Individuals and organizations are protected against illegal actions by the state, protecting freedom and autonomy.

Proper separation of powers to prevent imbalance of power.

Additional rule of law safeguards against the arbitrary and unwarranted state power.

Question 4

Constitutional principles

Constitutional monarchy:

Answer 4

Government/executive are drawn from the Commons.

Parliament at the pinnacle of constitutional system: unlimited legislative powers.

Ministers are politically accountable to Parliament.

Question 5

Constitutional principles

Democracy

Answer 5

Public are entitled to vote for select members of a decision-making body: Commons

Thomas Paine (1791):
Rejected legitimacy of monarchical government
Believed men had universal and inalienable rights

Question 6

Proposed reform and Constitutional reforms

Bogdanor (2009)

Answer 6

emphasis on public participation by more democracy:

Public should be able to make more decisions and effectively control decisions made by government

Solution #1: Open primary elections, run by political parties

Solution #2: Greater use of referendums

More legal constitution involving the rise in judicial review, HRA 1998 and EU law

Question 7

Why the UK has no codified constitution

Bogdanor (2007)

Answer 7

Historical reason:
Written constitution usually formed through revolution, regime change, war, attainment of independence. Example of USA: declared independence from Britain. England hasn’t had a ‘constitutional moment’ yet.

Conceptual reason:
Only dominant constitutional principle is parliamentary sovereignty. 1689 Bill of Rights didn’t entrench fundamental rights against a majority in the legislature, unlike the US, but guaranteed rights of Parliament against the King.

Question 8

Why the UK has no codified constitution

Brazier (2008)

Answer 8

Had English Civil War and revolution occurred 100 years later, England might have been swayed by intellectual movement which saw the necessity for constitutional codes.

Question 9

Case for a codified constitution

Bogdanor (2007 & 2010)

Answer 9

Allows for a clear, accessible and coherent account of the body of fundamental rules and principles according to which the state and society are constituted and governed.

Criticising it’s absence with the ‘tennis club’ scenario:
Rules not collected together in one place, scattered amongst decisions of past presidents of the club, can search to find them but will take long, and there are rules not written down that you pick up as you go along.

Question 10

Case for a codified constitution

Barber (2008)

Answer 10

Affords a radical change and improvement of the constitution

Clarity would be good as people will want to know where the constitutional power lies

Question 11

Constitutional Acts (8)

Answer 11

Human Rights Act 1998 (HRA 1998)

Devolution Acts 1998/2006/2012 (DA 1998/2006/2012)

Freedom of Information Act 2000 (FIA 2000)

Constitutional Reform Act 2005 (CRA 2005)

Equality Act 2006 & 2010 (EA 2006 & 2010)

Constitutional Reform and Governance Act 2010 (CRGA 2010)

Fixed-Term Parliaments Act 2011 (FTPA 2010)

European Union Act 2011 (EUA 2011)

Question 12

Impact of Written constitution

Barber (2008)

Answer 12

Claim that need for written constitution to shift power away from Westminster to rebalance the constitution is outdated: Rebalance has already occurred with Constitutional Acts.

Question 13

Case against a codified constitution

Bodganor (2007)

Answer 13

There is a sense of incompleteness with current reforms, no final constitutional settlement

Next stage of constitutional reform will be more complex and fundamental

Question 14

Case against a codified constitution

Barber (2008)

Answer 14

Too many different areas of law that are not connected, shouldn’t be put into one document

Difficult to determine what the role of the courts in the new constitution will have and how they interpret the constitution

Too much certainty and clarity in constitution wouldn’t be beneficial, as uncertainty avoids for costly political choices such as determining the boundaries of legal relationship between UK and EU

Question 15

Entrenchment 
Gordon (2009)

Answer 15

Codified Constitution is one that contains at least some entrenched provisions of a fundamental kind that are incapable of being changed without invoking a specific amendment procedure set out in the Constitution itself.

Question 16

Constitutional desirability
Core concerns (3)

Answer 16

Core concerns are
rigidity,
judicial empowerment and
democracy

Question 17

Constitutional desirability

JUSTICE (2007)

Answer 17

If Parliament can make it easier to legislate by passing Acts or abolishing the Lords, it can also make it harder to legislate

Unlikely the judiciary would refuse to accept a constitutional reform that has passed through the democratic process and consultation

Question 18

Constitutional desirability

JCHR (2008)

Answer 18

Not in favour of entrenching a UK Bill of Rights against future amendment or repeal

Such forms of entrenchment are not compatible with our tradition of parliamentary sovereignty which has preserved the freedom of each Parliament to legislate through democracy

Question 19

Entrenchment amendments Methods (5)

Answer 19

The usual legislative process

Approval by both Parliamentary chambers

Constitutional Amendment Bill procedure

Referendum approval requirement

Parliamentary super-majority

Question 20

Codified Constitution is?

Answer 20

• Written Down
• Found in one Document
• Usually policed by the courts

•Entrenched
o Amending formula
o Higher Law

Question 21

Entrenchment + Parliamentary Sovereignty

Answer 21

•Parliamentary sovereignty
o Parliament cannot bind future Parliament

Implied Repeal
•Thorburn case
•	2 kinds of statutes
o	Ordinary (implied repeal)
o	Constitutional statutes (cannot be implied repeal)
•	Can be repealed expressly

Question 22

3 amendment models?

Answer 22

1) Super majority for amendments
o 2/3 of each house

2) Referendums
oPublic Vote
•	Voter turnout issue
oDemocratic legitimacy 
•	If democratically amended or created, more likely to be accepted by the judges

3) Ordinary legislative change
o Simple majority

Each have strengths and weaknesses

Question 23

• Different approaches to policing the codified constitution (4)

Answer 23

1) Centralized constitutional court

2) Canadian Approach
• Notwithstanding clause

3) UK method
• s. 3
o Must be read subject to the constitution

4) New Zealand
• Constitution is a guide, nothing more

Question 24

arguments presented by Nick Barber against a written constitution? (3)

Answer 24

1. Risk forcing through unpopular or concealed changes to the constitution
2. Risks shifting political power from democratic institutions towards the judiciary
3. Risks unnecessarily provoking a destabilizing constitutional crises

Question 25

arguments presented by Nick Barber against a written constitution

1. Risk forcing through unpopular or concealed changes to the constitution

Answer 25

• Referendums involving unrelated issues that are presented to the public as a package to either accept or reject in its entirety
o Comprehensive Reforms
o Difficult to untangled

•Changes would occur that would not have otherwise if the issues were treated as separate elements and debated separately

Question 26

arguments presented by Nick Barber against a written constitution

2. Risks shifting political power from democratic institutions towards the judiciary

Answer 26

•The rebalance has already occurred
o S. 4 HRA 1998
o ECA 1972

•Many parts of the constitution are non-justiciable
o Ex: ministerial responsibility
o Could not be turned into court enforced law

•Places them into areas where they should not bad

Question 27

arguments presented by Nick Barber against a written constitution

3. Risks unnecessarily provoking a destabilizing constitutional crises

Answer 27

•It is a political compromise
o They can co-exist

•Constitutional self-defense
o Unclear who would win
o Each has interest in avoiding the contest

•In describing, you are re-writing

•Friend with bad bf examples
o Why address it?