Codified Constitution

Uncodified constitution

There are only 3 liberal democracies left in the world with these : Israel, United Kingdom & New Zealand. 

-the laws, rules and principles specifying how a state is to be governed not set in one single authorative document. 

found in a number of places british constitution can be found in:statute law, common law, conventions, authorative works & european union law.

can be amended with a simple act of parliament - british constitution is reducable to what parliament enacts. therefore it has the status of ordinary law; there is no hierachy of laws. 

it is not entrenched, but can be ammended with a simple act of parliament. 

Parliamentary sovereignity, gives parliament legislative supremacy to change any law it wishes, which includes the constitution. 

this results in limited judicial review: because without a codified constitution it is hard to decide what makes something unconstitutional. 

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Codified Constitution

one which the major principles underpinning the political system are collected in a single authorative document.  not a detailed blue-print, reference point for an evolving political system. 

  • often produce in critical juncture in a nation's history this may influence what is included. (US Constitution 1787) after independence from british.  

status of fundamental law - above other law made by legislature.

 it is entrenched, therefore has to undergo special procedures to be able to change it making it more difficult than ordinary legislation. 

they are rigid but there is some degree of flexibility - the 1958 constitution of the French Fifth Republic was amended 17 times in 50 years

courts can use it as a point of reference to see if actions are unconstitutional. 

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Unitary & Federal constitution

british constitution is a unitary constitution..

although the UK is made up of 4 component nations, it is highly centralised. Sovereignity is located at westminster. 

subnational institutions do not have autonomous that is constitutionally safeguarded.local gov have little power and regional gov have historically been weak or non-existent. 

exhibit high degree of centralisation and standardisation: all parts of the state governed the same way & share common political culture

Federal constitution i.e Germany & america

power is shared. each tier of government is given specific powers and granted significant autonomy; one tier of government cannot abolish another. 

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Union State

important political and cultural difference remain.

this reflects the different ways in which parts of the state are united.

therefore political and cultral differences remained. wales it's language, scotland its legal system and northern ireland seperate institutions and politcal parties.

at westminster every nation has a gov. department headed by a cabinet minister. 

devolution has raised question over britian as union state because it have given a lot more power to regional governments therefore raising further questions about the uk and it's constitution. 

Oxford professor Vernon Bogdanor claims the uk const. to be 'quasi-federal' 

  • in practice westminster no longer has power to make domestic policy in many areas of scotland. 
  • the suprerme court can rule on which body has constitutional authority when issues about competence arise.
  • other institutions have been established to manage relations between uk gov & devolved bodies.  
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Statute Law!

law created by parliament in the legislative process. 

implemented by the executive and enforced by the courts. 

statute law is the most important source of principles making up the british constitution because parliament is the sovereign body.

however not all acts are of constitutional significance i.e: funding for schools have an important effect on policy but not on the constitution. 

e.g. statute law that have been of historical constitutional importance include:

  • the scotland act (1998) creating a scotish parliament 
  • european communities Act (1972), uk joined the european economic community (EEC)
  • the human rights act 1998 which enshrined key rights in the Uk law. 
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Common Law!

legal principles that have been developed and applied by UK courts.

courts interpret and clarify where there is no statute law, therefore it is a legal percedent made by judges, for example the rights of homeowners to tackle intruders who enter their property.

judicial decisions have clarified the rights of citizens vis-a-vis the state. such rulings have become part of the body of the common law and serve as a guide to future lawmakers

it includes customs that have become accepted pratice. relates to role of monarchy , parliament and the executive. particularly important is the royal prerogative-

the powers exercised in the name of the crown these include:

declare war and negotiate treaties,  dissolve parliament, appoint government ministers ,appoint judges.  --> Prime ministers will inform the monarch of decision but they have no real power to veto prime ministers' actions or dissuade them from their chosen course.

2007 'Governance of Britian' Green Paper included proposals to give parliament a greater say over how gov. ministers exercise prerogative powers.   

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these are rules and law which are considered to be binding, not codified or enforced by law but gain their authority as a result of long usage.  the british const. is regarded as flexible because some of the key elements are based on convention. For eg. since 5th july 1945 elections are always held on a thursday however this isn't something that is written into law it is just as a result of tradition.    by convention the monarch must assent to all acts of parliament but she is unlikely to refuse because it would cause a constitutional crisis, and call her power and authority into question.

3 eg to illustrate their ambiguity;  appointing of prime minister: the monarch does this, the leader of largest party is invited to buckingham and invited to form a government. alec douglas-home 1963 last ever prime minister to come from HOL.  

by this time it become convention that prime ministrs should come from hose of commons. therefore he resigned fought a successful by-election to take a seat as an MP. first past the post does usually form strong government makes the monarch's decision of who will form the gov. a formality

 but when hung parliaments occur like that of 2010, monarch faced with difficult decision. Because there are days of talks of whom will form the next gov. however defeated prime minister does resign until all possibilities exhausted.  

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Conventions 2

ministerial responsibility 

circumstances of which gov. ministers should resign governed by convention. covention of colective ministerial responsibilty means that when a decision is reached in cabinet all members are accountable for the repercussions and if they disagree they have to resign. e.g. Tony Blair decision to go to war, lead to resignation of Robin Cook, however he allowed Clare Short to remain even with her public opposition towards it.  individual ministerial responsiblity holds ministers should resign if they or their department guilty of serious political mistakes . However being convention not clear cut.

Salisbury Convention

basically states house of Lords should not wreck or vote down bills which seek to enact a manifesto commitment of the governing party.  marked acceptance in 1940 that elected upper house with an inbuilt conservative majority should not fustrate the will of the Commons and the electorate.  But lib & cons peers voted down lab's manifesto pledge on identity cards, even though it had featured in it's manifesto. They argued lab did not have sufficient mandate, having won with 35% majority on a low turnout, and that no party had a majority in a reformed house of Lords stripped of most hereditary peers. 

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Authorative works & European Union Law

number of established legal and political texts have become accepted as works of authority on the British constitution.  no formal legal authority but helpful in underpinning the constitution. act as a guide to the workings of institutions and the political system in general. 

examples include:

Erskine May's treatise on the law, privelleges, proceedings and usage of parliament (1844)  regarded as the 'bible' of parliamentary practice, providing a detailed guide to its rules and practices. 

Walter Bagehot's The English Constitution (1867) set out the role of cabinet and the Prime Minister, describing the latter as 'first among equals'. 

European Union Law;  1 January 1973, UK became member of the European Economic Community. Maastricht Treaty 1993 led to it being called European union.  Treaties establishing the eu, legislation emanating from the EU and judgements of the European Court of Justice have all become a part of the British constitution. 

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