Defining a Constitution
- A constitution essentially spells out the architecture of governance.
- It details the government in a country and collection of rules, written and unwritten which regulate the government and inform the relationship between the Gov and people.
- Specifies what the different powers of respective branches, and levels of government, are as well as the relationship between them. e.g German constitution provides for federal arrangements, whereas the UK operates unitary systems.
- Specifies relations between citizen and the state. e.g the first 10 amendments to the US constitution are called the bill of rights inc right to free speech, bear arms etc.
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Two Features of a Codified Constitution
- Role of Different branches and levels of government and the relations between the citizens and the state are brought together in a single document. e.g the oldest example the US constitution
- Codification implies entrenchment i.e higher law and requires a special procedure for amendment e.g the irish constitution whereby a referendum is set after a bill passes both houses of its legislature.
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Federal and Unitary Constitution
- Federal constitution - entails separate spheres of sovereignty between national and sub-national level, each level is in theory autonomous e.g USA, fedral goverment in washington DC is supreme in areas such as foreign trade but state is supreme in areas such as crime(some have death penlty others don't)
- Unitary constitution - draws all power into a central source e.g UK all power resides in Westminster.
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Sovereignty refers to Absolute Power i.e the exclusive right to govern
- In the UK sovereignty in legal terms lies in Westminster as 'parliament have the sole right to make and unmake laws'. But the concept of popular sovereignty suggests power is merely loaned to legislators since the people exercise popular sovereignty by voting.
- Another distinction is Internal and External.
- Internal - relates to power exercised within national boundaries.
- External - is connected to abillity of the state to participate in international negotiations e.g Libya or Ireland 'Good Friday Agreement'
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UK Constitution Main Features
- The UK Constitution is Uncodified.
- It is drawn from many sources
- Some written but not all in a single authoritative document e.g acts of parliament Human Rights Act (1998)
- Unwritten sources are in the form of conventions e.g as the leader of the party with the biggest majority becomes the PM.
- UK operates according to the Rule of Law.
- This is a principle which states that law is applied equally to all citizens throughout the UK
- Citizens also have Rights and Government power is not unlimited
- Another feature is that it is unitary
- It draws all power into a central source e.g in the UK all power resides in Westminster
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Sources of the UK Constitution
- Statute Law - Acts of Parliament which account for alot of rules in UK
- House of Lords Act 1999 (Cutting Hereditary piers to 92)
- Terrorism Act 2005 (28 day detention)
- Common Law - 'Judge Made Law' decisions of judges form basis of law & precedent determines how law is applied in the future. Much UK criminal law derives from Common Law, No statute law making murder illegal.
- Conventions - 'Doing things the English Way' as they always been done. e.g PM is leader of the party with largest majority, senior members of government make up the cabinet. Salisbury Convention guidelines on lords not rejecting any bill which was in their manifesto.
- Royal Prerogative - The PM exercises powers which are theoretical the preserve of the monarch e.g hiring & firing ministers, calling elections.
- European Law - European Court of Justice resigns supreme where EU law applies e.g July 2008 Lux illegal to discriminate against an employee due to association with a disabled person. Or Prisoners Vote
- Works of Authority - 'Write about it Your become it' A.V Dicey Twin Pillars- Rule of Law & parliamentary supremacy or Walter Bagehot - Principle of Cabinet
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Distinguishing between Codified and Uncodified Con
- Codified Constitution -
- Roles of different branches and levels of government and relations between citizens & state are brought together in a Single Document.
- Codification implies entrenchment i.e it is higher law and requires a special procedure for amendment.
- Codification usually implies that the document is judicable, i.e highest court determine its application and what isn't constitutional
- Uncodified Constitution
- Found in only UK, Israel and New Zealand
- Draws on Multiple Sources, some written and in the case of the UK in the form of statute law. However alot of the governments workings are based on conventions.
- In the UK our constitution can be shuffled about easily and changed or adapted.
- UK courts determine discrimination cases only in relation to act of parliament.
- Even the human rights act only allows things to be declared as incompatible with EU law
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Where sovereignty is located in the UK
- Legal sovereignty is located in parliament - this means that it has ultimate legal power, its actions cannot be over-ridden by any other body.
- Some power has been transferred
- Downwards to devolved structures e.g Scottish parliament has exercised its primary legislative powers to control higher education funding and long term care for elderly.
- Upwards to the supranational EU e.g regulating many things, from limits on company CO2 emission to what farmers produce.
- Sovereignty in practice can be said to be located elsewhere, doctrines suggest the people hold ultimate power and they lend it to MPs between elections e.g politicians must remain sensitive to public opinion even though they cannot recall elections however referendums do fill this space.(London/NI 1997) (Manchester 2008)
- Parliamentary government can be said to be a euphemism for cabinet government and by extension for PM government. e.g in the case of Tony Blair and his couch style leadership sovereignty lied with him and in effect he was an elected dictatorship.
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Ways in which Parliament is Sovereign
Dicey stated ''parliament has the sole power to make or unmake any law'' this means ultimate power and cannot be over-ridden, this can be variously illustrated:
- First, power which has been transferred up or down can be reversed, devolution can be repealed by a simple act of parliament e.g Thatcher GLC and 6 met boroughs in 1986. NI suspended in 2002 and restored in 2007. UK can withdraw from the EU at any time and remove EU law
- No parliament can bind its successors, not just constitutional matters acts of parliament as well.
- The erosion of sovereignty by the government in relation to the HRA and creation of the new supreme court. which ends the function of the HofL as final court of appeal. These changes do not give judiciary power to strike down parliament actions in a legal check instead provide a moral check. e.g Belmarsh case parliament could have ignored judgement and they still remained locked up while new legislation drawn up.
- Lastly, in absences of a codified constitution outcomes of referendums are not legally binding it is up to the gov to listen to the will of the people.
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