What is a constitution? 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.
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Difference between codified and uncodified.
- 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.
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Arguments suggesting there isn't 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.”
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What are the arguments given suggesting there is..
- 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.
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What are the sources of the UK Constitution?
- 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
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What is the weakness of the UK Constitution?
- 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.
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What are the features of the UK Constitution?
- 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.
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What are the arguments in favor of a codified Cons
- 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.
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What are the arguments against a codified constitu
- 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.
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What is Parliamentary sovereignty?
- 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.
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