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The UK constitution looks confusing to a foreign observer: most states have a written constitution which is a document with special sanctity; a declaration of the country’s supreme law; all laws and all institutions of their state subordinate to a written constitution and intended to be an enduring statement of fundamental principles (See Bradley and Ewing; and Turpin). This is to describe a constitution narrowly. Yet even where there is a formal document, not all the rules are found there. However it is a good place to start. How do we describe the UK constitution?
If we made a complete list of all the multiple sources of rules and principles, i.e. legal rules (statute, common law) and non-legal rules (conventions) that would be put into a written constitution it might provide a single document but it would fail to reveal some important features. A wide definition is that a constitution is a body of legal and non-legal rules that establishes institutions, governs the relationship between them, and governs the relationship between the individual and the state. However a functional analysis is inadequate, it is too dry. A constitution must also embody a nation’s values; it must be directed to the public good, give people a reason for action, give people a stake in the constitution. Constitutions therefore have political significance (see Thomas Paine on early constitution).
The British or English (Tomkins) constitution has evolved over centuries and may not be said to embody a single constitutional theory (such as federalism –Germany or republicanism –France). Yet one enduring principle is that of limited government – which acknowledges the fact that the power of government is necessary – yet at the same time placing limits on its exercise. Yet constitutionalism is not necessarily ensured by a democratic governmental system – we need effective and legitimate institutions. Our constitutional rules can be rooted in history or tradition but if a constitution is to be a living instrument then we also depend on principles (studied later) such as democracy (see below), the rule of law (different views but legal and political ideal: Diceyan version: against arbitrary power by governments and for equality before the law), parliamentary sovereignty (Dicey – “Parliament…has, under the English constitution, the right to make or unmake any law whatever” and no person/ body can override an Act of Parliament) and the separation of powers ( separation of legislative and executive and judicial powers).
UK Constitution: Key Points.
Narrow/ wide meaning? Document/ Rules.
3 things: Create institutions, relation between institutions, and relation between state-citizen.
Functional analysis not enough: People too – political significance. Democracy. Legitimacy.
Constitutionalism – limited government.
Parliamentary sovereignty and rule of law.
Sources of the UK Constitution and how do we determine its content?
We have rules which conform to the principle of constitutionalism – they govern institutions of the state, their relationship between each other and with the individual. Courts (importantly), political actors and force of public opinion preserves constitutionalism.
Constitutional law – definition: Bradley & Ewing: “Constitutional law presupposes the existence of the state and includes those laws which regulate the structure and functions of the principal organs of government and their relationship to one another and the state”.
But no clear demarcation between different branches of the law – Turpin asks: do they have a necessary connection to the government? – Bradley & Ewing: constitutional law comprises rules regarding the structure of primary organs of government; administrative law regulates the work of officials, the organisation, power and duties of administrative authorities.
Source = formal (has legal force and are binding) or informal (historical/political – may be used in arguments but not binding). Therefore, primary sources = legislation and common law/ judge-made law; secondary sources = political practices, procedures books of authority.
Public law to be viewed with a “European perspective”: EC Act 1972 – EU law is supreme despite Parliamentary Sovereignty – Factortame. ECHR signed by UK in 1950 but convention rights now enforceable in domestic courts under the HRA 1998. However remember judges have no power to strike down legislation.
Written: formal source of constitutional law in a single text, more accurately a “documentary” constitution. Yet written document alone may not ensure government works properly, can not contain all the rules. Written/ framed but must be fleshed out later. Many the result of political events such as revolution (US/ France); independence (India); defeated in war (Germany); regime change (South Africa) – which reflected political beliefs and aspirations of the drafters. Writing gives sanctity. Unwritten: de Tocqueville – England had no constitution because not written down. Tomkins – the distinction is exaggerated, it is written somewhere. The distinction is not one of substance but one of form. Bradley & Ewing: “absence of a written constitution means government depends less on legal rules and safeguards than upon political and democratic principles”. Legal consequences of the distinction: written constitutions limit power by federal structure or entrenching rights or separation of powers; UK unwritten we rely on the rule of law and sovereignty of parliament.
Codified: since no constitution is fully contained in a single written text, we mean that the text codifies the rules. Often codified because of political events: Uncodified: UK constitution uncodified because of historical development; criticism that only codified constitutions merit the term because no enforceable guarantees in uncodifed arrangement; but if codified must comply with principle of constitutionalism to distinguish “real” from “façade” constitutions (Tomkins). Problems: Bogdanor: “indeterminate” (rules are vague, uncertain); “indistinct” (no clear demarcation between public law and other branches); “unentrenched” (nothing in it which can not be changed – see below). But these problems would not necessarily be resolved by codifying/ writing down – written laws can still be uncertain; written constitutions may still be changed – amending provisions etc; but indistinct – ok yes we would see where a constitutional rule was laid down.
Flexible: there is no aspect of our constitutional arrangements which could not be altered. In UK done by Act of Parliament because of Parliamentary Sovereignty and doctrine of implied repeal. Allows social change because it is adaptable; but flexibility not a good in itself. Flexibility could explain success of UK constitution (Leo Blair). Inflexible: unchangeable rules or only changed through an extraordinary process (Calvert). Further distinctions: (1) flexibility is not about a regime being stable or not; (2) unwritten does not mean flexible necessarily or vice versa (eg Singapore) – this confuses content with form. (3) But how to square flexibility with continuity – eg the role of constitutional conventions – crystallisation of a practice – we need balance between change and history.
Democratic: system of representative and responsible government where popular control is exercised over the political leadership. UK – voters elect “members of a representative institution, the House of Commons, and the government is accountable to the House and ultimately to the electorate” (Turpin). Some claim the British constitution has embodied the principle of universal suffrage (being able to vote) with the enactment of the Representation of the People Acts 1918 and 1928 but consider later and changing position of university graduates, women and prisoners. Idea of government of the whole people. Embraced by most political parties. Citizens not only vote but take part in decision-making (but indirectly and in a limited way). Referendums etc. Need institutional framework and more than 1 party state. Today, “liberal democracy” – individual freedom. But for legitimacy must restrict majority rule to give voice to minorities. “Moral force”. Undemocratic: opposite. Governments are not elected by nor removed by the people thus they are neither representative of nor responsible to the people – popular control is not exercised over the power of the government. Occurs through 1 party states, opposition parties excluded, barriers to associations, freedom of speech and media freedom restricted.
Monarchical: monarchy eg UK! The constitution of a king and queenship; hereditary usually. Extreme monarchies depend on rule by the monarch, not merely reign. Old Russian Tsarist system – divine right. Contemporary view = limited monarchy, simply a head of state. Republican: Absence of monarchy! A state without a king (Plato’s Republic). But Blair form of republicanism – doesn’t necessarily mean no monarch – they can have v superficial role in power.
Presidential: Legislature and executive are elected separately and for different terms – president may be one party, the legislature another. More common in undemocratic than democratic regimes Parliamentary: no clear cut separation of powers – executive forms part of the legislature and in this way usually the same political majority; but may be more flexible and responsible to a public.
Federal: Division of power and tasks of government between central government and federations or local government – eg Germany – Federal/ Lander and People/ State. Federal power is formally writing down the structure/ codifying. Constitutional limits bind both levels and these limits are enforceable in law. Unitary: centralised power so in UK at Westminster. Controversial – because seen as being removed from local people – consider devolution, London Mayor, calls for regional assemblies. Contrast devolution and federal structure – in federal system a written constitution would prevent Parliament taking power back into its own hands.
(See Fenwick and Phillipson):
Not entrenched – subject to Parliamentary sovereignty; HRA 1998 and Scotland Act do not change this.
Special majority in Congress followed by ratification of ¾ states.
Special majority of each house. Unamendable – human rights and federalism.
Bills pass through both houses; referendum/ resubmit to Congress need 3/5 vote. Unamendable – republican government
Adoption of new constitution by convention/ referendum – consent of 2/3 component members needed.
Unwritten, uncodified, unentrenched, sov of parl, unitary not federal, no supreme law, judges no power to strike down.
V brief; separation of powers and checks and balances; federal; how to remove president – impeachment – vague. Clinton – Lewinsky.
Lengthy and complex; federalism and democracy; Federation/Lander and State/People; remember Weimar; erosion of local govt.
Republican; supreme law; have quasi-political legal body.
Democratic federal and republican; remember perestroika; hugely diverse components; 21 republics; federal law supreme.
Bicameral. 2 Houses but unequal. Upper may be overruled by lower (elected).
Sep of powers = independence of judiciary.
Prime Minister real power, monarch none.
Bicameral Congress; members elected; House of Representatives has members from states; Lower represents individuals; Houses equal.
Political parties may be declared unconstitutional –Houses unequal; upper may be overruled by higher; Chancellor real power; president none.
Separation of powers; houses not equal; upper may be overruled by lower; presidential and parliamentary; president not jut titular – directly elected.
Houses not equal; upper may be overruled by lower; expanded role of President; has power of veto over legislation (but can be overruled). Consider Putin.
Independence but not express; Sep powers but obscured because Lords = legislature and snr court; Lord Chancellor anomaly – judge, cabinet, legislature; judges independent and irremovable (to a degree). No power to declare legislation invalid/ strike down.
Independent; again irremovable (to a degree); any court has power to declare legislation invalid – Marbury v Madison. Ex post facto declaration of unconstitutionality.
Independence not express; Constitutional court with constitutional review – can rule on political parties, compatibility of legislation (at request of 1/3 Bundestage); Constitutional court now open to individuals is exhaust domestic remedies.
Independence not express; tribunal with constitutional review; unique constitutional council checks bills before promulgated.
Independent, express but “frail reality”; tribunal with constitutional review; express; lacks respect – Gorbachev and Yeltsin scandals.
No entrenched rights; HRA made enforceable ECHR rights via Schedule 1.
Calls for Bill of Rights because entrenched or because politically popular – David Cameron.
1st 10 amendments = rights; expressed negatively; freedom of speech is v important in US; where no express rights, they read the “penumbra” (eg abortion and right to privacy)
Bill of rights at beginning, inviolable, directly enforceable, binding on legislature; allow balance individual and society; unusual reference to God; if violate rights, forfeit protection
French Declaration of Human Rights of man and the citizen expressed in Preamble.
Bill of Rights in 2nd chapter; directly effective; contains economic and social rights (Brezhnev) but also now reflect capitalism – eg rt to private ownership.
How do we recognise a “constitutional” statute?
Supremacy/ Entrenched constitutions.
entrenchment – legally protected from modification without special procedure – amending provision; UK no special procedure therefore unentrenched – Parl Sov.
supremacy (a higher law status); if inconsistency between higher law and ordinary – supreme law trumps ordinary and courts have power to strike down the latter as unconstitutional – see US Supremacy clause and .Marbury v Madison.
Roughly, entrenched constitutions with supreme law: constitutional rules found in “constitution” and a constitutional court says so, with power of strike down of ordinary statutes, but special (or no) amending provision for constitution.
Superior laws: Riddely – they (a) originate from a higher authority (b) authority of legislature derives from it and bound by it (c) principle of hierarchy may give possibility of judicial review. Note that entrenchment means amending either impossible or exceptional and its purpose is to limit the powers of government regarding those provisions thought fundamental (eg rights).
UK no entrenchment so how do we know? Is nothing secure? Rely on parliamentary sovereignty but what about “elective dictatorship” (Hailsham)? Centralisation of power/ majority v minority.
Thoburn v Sunderland City Council: “ordinary” v “constitutional”
Constitutional statutes govern legal relationship between citizen and state and determines the scope of fundamental rights. They have “special status”. But be careful, importance does not place them in different legal position. All Acts of Parl can be repealed.
He argues that constitutional statutes not subject to implied repeal; Courts have to apply objective standard as to Parliament’s intention – for constitutional statutes, this can only be met by express words.
List of “constitutional statutes” but none have the width or scope necessary to attribute the title “constitution” to it; (consider too the Instrument of Government under Cromwell)
Tying hands of judges/ tying hands of Parliament?
Orthodox view is that statutes (of any kind) can be interpreted by courts but judges have no power to strike down legislation; the doctrine of implied repeal applies to all; Intention of Parliament must be given effect to – objective not subjective standard. Parliament is sovereign and judges must tread carefully. A division of competences and judges should not become legislators by being too activist. Yet should not be too deferent.
Political or legal constitution?
“Constitution” as a political term / constitution political not legal: Dicey’s influence for over 100 years that courts should play a limited role. Griffith: political decisions should be taken by politicians; elected and removable, fear of elective dictatorship (Hailsham), only remedy is political control. Rights of the citizen are nothing but political claims and should not be dressed up as legal questions for the courts to adjudicate on. Tomkins: political constitutions exercise political power and are held to account through political means, legal constitutions hold the government account primarily through the court system.
For/ Against remedy for abuse of government power lying in hands of Parliament or Courts: Parliament – politics decided by politicians, elected, removable if get it wrong, but politically biased; based on majority therefore minority rights trammelled; Courts – political questions inappropriate for legal adjudication, unelected white men, irremovable (difficult); but adjudicate from standpoint of neutrality; minority rights better protected?
Fire Brigades Union Case: HL majority held Home Secretary used prerogative powers unlawfully to state that the provisions of the 1988 Criminal Justice Act would not come into force even though the 1988 Act conferred a duty on him to bring those provisions into force; but dissent – this is political not legal in character. Here courts taking power into hands to keep executive in line and reading legislation to that effect.
Question now is whether a political or a legal constitution – Munro – becoming more rule-based – judges taking power – consider their expanded role following HRA 1998.
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