Politics Unit 2

• “A social contract between the people and their government” (McNaughton) which underpins the workings of a political system.
• It sets out the basis upon which the people agree to be ruled and the govt agree to act within strictly defined rules limiting their power to do as they wish.
• Within these rules provision is made to protect the civil liberties of the people and to set out the procedure by which the Constitution can be altered.
• A constitution spells out the architecture of governance. It spells out the rules which establishes the duties, powers and functions of the various institutions of government.
• It also defines the relationship between the state and the individual.

What is the difference between a codified and uncodified constitution?

• Codified – written in a single document, also entrenched and superior to all other laws.
• Uncodified – growing collection of documents, laws and traditions. The UK Constitution has various sources from which it has developed.

What are the arguments given suggesting there is not a UK Constitution?

• It is uncodified – not organised into any single codex or document, but is scattered in many different sources and some parts are unwritten. Therefore, how can it be followed as a superior power?
• Constitutional statutes do not have more authority than other statutes.
• Constitutional laws cannot be entrenched due to parliamentary sovereignty, e.g. 1994 Criminal Justice Act overturned the Constitutional “right to silence.”

 What are the arguments given suggesting there is a UK Constitution?

• There is a general sense of a constitution.
• Tradition is a very powerful influence within the UK. Governments are reluctant to infringe independence of the *Judiciary, freedom of expression, primacy of the Cabinet etc.
• The public act as guardians of constitutional principles by voting out govts that have offended against these principles.
• There are accepted forms of constitutional rules.

• Statute Law/Acts of Parliament.
• Common Law/Legal Precedent
• Prerogative powers e.g. National Security
• Unwritten Conventions e.g. Collective Ministerial Responsibility
• Books of Authority e.g. Dicey’s “An introduction to the study of law of the Constitution”, Bagehot, Erskine *May’s “Parliamentary Practice”
• European Law including treaties such as Maastricht Treaty, Lisbon Treaty

• Statute is supreme over other constitutional authorities.
• Therefore, an Act of Parliament can change/abolish any point of Common Law, RPP etc
• Statute is controlled by Parliament and Parliament is controlled by governing party.

• Unitary – Sovereignty in one place.
• Parliamentary system – supreme legislative.
• Rule of law – guiding principle that underlies UK Constitution limits government (everyone is equal under the law).
• Limited sovereignty – limited by EU membership.
• Constitutional monarchy - The Queen is the head of state but her powers are strictly limited.
• Flexible – b/c unentrenched.
• Little separation of powers – no one person should be a member of more than one branch of govt (Montesquieu’s ideas). There is a fusion of powers between the legislature and executive.
• Single tier legal system.
• Uncodified but part written.

What are the arguments in favour of a codified Constitution?

• To make it definitive, and not subject to the whim of the government of the day.
• To limit executive power which controls Parliament through an elected Commons majority. The aim would be to disperse power more widely.
• To define powers and limitations of different government institutions, making it possible for senior judges to rule when their actions are unconstitutional.
• Individual rights are not protected enough by the Human Rights Act.

What are the arguments against a codified constitution?

• Would harm the efficiency of govt – present system allows to pass laws and deal with urgent matters quickly.
• Would prevent flexibility which currently allows govt to adapt to change. e.g. in USA presidential attempts to quickly adapt to crises have been rejected by Supreme Court using the Constitution.
• Would end Parliamentary Sovereignty and therefore undermine many of the institutions that the govt is based, destroying traditions which uphold the British political system.
• Lack of consensual agreement as to what form a codified constitution should take. No agreement by the political parties will be reached.

• Parliament can make any law it likes – “Parliament can make a law forbidding Frenchmen to smoke on the streets of Paris.” – Sir Ivor Jennings. This has been limited in recent years due to power going to the EU and devolved assemblies. However, these two limitations can be cancelled out by a single statute.
• Parliamentary law is supreme and therefore everyone must obey it.
• Parliament cannot be limited by the actions of previous parliaments – implied repeal. e.g. 1994 Civil Justice *Act overruled constitutional right to silence which had existed for centuries.
• The orthodox view, however, is that sovereignty lies with the people who transfer it to the govt by election for that govt’s term of office.