Constitutional Law

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Constitutional Law

Constitutional law is NOT politics; cases and the legal issues are key

Constitutional law is very dynamic

What should a constitution contain?

A constitution should contain a set of rules

  • It is NOT a complete and accurate description of all power relations in the State

Both politics and law are about conflicts/power and the systems by which conflicts can be resolved

The constitution lays down how rulers exercise their powers and what the government can and cannot do

It lays down the relationship between the citizen and the state

There is no definite definition of a constitution or what is should contain

Definition of a constitution

Thin definition of constitution:

“Law that establishes and regulates the main organisms/institutions of government their organisation and powers”

A collection of legal and non legal rules making up a system of government

Thick definition of constitution:

The constitution defines the powers of government and their main organisations

It is a framework of rules

It could be in one or many documents

It operates as a superior form of law e.g. the constitution may limit the power of the state

Entrenched provisions

  • Constitutional provisions are not easy to amend/change

Constitutional provisions are judiciable

  • So the courts have the last say on the meaning of the constitution

The constitution is a “mirror reflecting the national soul” (Ishmael Mahomed, chief justice of Namibia and later CJ of South Africa)

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Where is the British constitution?

The British constitution is uncodified (i.e. it is unwritten)

  • Jack Straw, modernising the Magna Cart (2008): “No one document” exists. The constitution exists in “hearts and minds and habits as much as it does in law”

The constitution can be changed at will by those in power, but we do have a lot of constitutional legislation that makes it difficult to change it

Arguments for an uncondified constitution

Historic constitution

  • Our constitution has evolved over a long time and we have never needed it codified. Most constitutions are only ever written up due to a great change in the country

Political constitution

  • Our constitution comes from the principle of parliamentary sovereignty i.e. the constitution itself is created through political will and is what the crown and parliament says it is

Parliamentary constitution

  • The principle Parliament is supreme in the UK is a key part of our constitution

The British system of government

Constitutional monarchy

  • The Monarch is bound by the constitution and acts as Head of State
  • The Monarch plays a largely ceremonial role today but historically had absolute power
  • Now, the Monarch’s power is exercised by government (this is known as the royal prerogative)

Cabinet Government

  • Our Government is made up of ministers of state (e.g. the Home Secretary, the Secretary of State for business, etc.) – cabinet is a meeting of these ministers

Parliamentary structure

  • The UK has a bicameral legislature consisting of the House of Commons and House of Lords

Separation of powrs

Parliamentary Sovereignty

European Sovereignty

Political Constitution

The central place of parliament is the British Constitution

The highest authority is the crown in parliament

Power is concentrated in the Prime Minister

Constitutional amendments require an Act of Parliament

Some elements of our constitution are controversial e.g. the Human Rights Act and Judicial independence

  • Theresa May wants to see the Human Rights Act go, whilst Nick Clegg has said “it is here to stay”

Judicial INdepdnence

Judicial independence is part of the separation of powers: Judicial independence is the concept that the judiciary needs to be kept away from the other branches of government (i.e. the judiciary is separate from Government and the Legislature)

You NEED an independent judiciary when resolving conflict

Sources of the British constitution

Statutes i.e. Acts of Parliament

The Common law i.e. case law made by the courts

EU law i.e. decisions made by Europe via the European Communities Act

Authoritative commentaries e.g. Blackstone and A.V.Dicey

Human Rights and civil liberties: Human Rights will always form part of the constitution

Royal prerogative: the Monarch’s power is given to the Government of the day

Constitutional conventions i.e. important rules of the Constitution that govern political practice

Acts of parliament

In Thoburn v Sunderland City Council [2002] 4 All ER 156, the judge (obiter dicta i.e. as an opinion) differentiated between an ‘ordinary’ statute and a ‘constitutional’ statute. It was said that a ‘constitutional’ statute is a statute that governs the legal relationship between citizen and state AND ALSO increases or shrinks the scope of fundamental constitutional rights

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