Sources of the UK Constitution
1) Statue law: Acts of Parliament which determine the relationship between the Government and people or different areas of Government. An example of this is the Human Rights Act 1998.
2) Common law: This is known as judge-made law or case law. These are customs and legal precedents that have evolved through the actions of judges over a period of time. The royal prerogative is rooted in common law (the ministers now have control of these)
3) Conventions: Traditions and customs which have evolved over a period of time and are now an accepted boy of rules. The doctrine of collective cabinet responsbility is an example of a convention. The monarch signing off legislation is also an example.
4) EU laws and regulations: When Britain joined the European Community in 1973, the Treaty of Rome (1957) was incoroporated the European convention into British law. EU Law has priority over UK law- the Factorome case proved this.
5) Works of authority: Scholarly texts such as Walter Bagehot's "The English Constitution" only have persuasive authority but have been used as constitutional references for many years.
Features of the UK Constitution
- Unitary- power is held at central government in Westminister
- Rule of law (AV Dicey), 3 main principles: nobody is above the law; no punishment without trial, the constitution should come as a result of common law, not statute law
- Parliamentary sovreignty- Parliament is the highest authority in the UK, they can legislate on any matter and cannot bind its successor
- Parliamentary Government under a Constitutional Monarchy: Goverment is granted a mandate to rule through free and fair elections. Government works alongside the monarchy. The monarchy is limited in what it can do compared to Goverment; and it has been looked on in recent years as a "dignified" part of the constitution
- Uncodified- not written all in one place
- Flexible- there is no entrenchment (protected by law), and easy to change
- Fusion of powers- executive and legislative parts of Government are mixed together
Debate for codified constitution
- There is nowhere for us to see the constitution clearly. It has evolved over the years and there are now different sources such as the EU. It would provide a clear of what is constitutional and what isn't.
- It would encouarge politicians to to stay in the boundaries of what is constitutional
- Would make it easier for judges to interpret and uphold the law
- Would have educative value and explain the political system
- Halisham's "elective dictatorhsip" comment. Politicians can make the rules to suit them.
- Make the constitution more difficult to reform
- Would provide an up to date statement of our rights, as the European Convention is now more than 50 years old
Debate against a codified constitution
- There is no widespread demand for reform
- It would be difficult to provide a constitution which was supported by everyone
- There is no gurantee written constitutions are durable. France has had more than a dozen since 1789
- In general, the consitution works well in protecting in civil liberties. There has been the occasional blemish but in comparsion to other countries, the British record is strong.
- Because it easily amended, it can easily move with the times.
General Features of a Constitution
Codified- The constitution is written down all in one place
Uncodified- The constitution is written, but all in different places
Entrenched- Protected by law and difficultt amend
Unitary- Where power is held at centrall government
Federal- This is where powers held at a central government and at various regional units
Flexible- Constitutions can be altered by the law-making process
Rigid- The system of amendment is far more difficult
Constitutional reform since 1997
- Removal of hereditary peers from the House of Lords: The act removed all but 92 hereditary peers in the HOL. Introduced by the Labour Government in October 1998, said to have made the HOL more legitimate, but that can be challenged, Peers are now appointed which leaves room for nepotism.
- HRA 1998: Incoroporated the European Convention of Human Rights into UK law. Citizens who feel that there has been a breach of their Human Rights can now take this up in UK courts, without having to go to the European Court of Human Rights in Strasbourg. Has led to the politicsation of the Judiciary as judges are drawn into the political fray
- CRA 2005: Created the New Supreme Court in 2009. Removed the Judiciary from the executive in a move towards the separation of powers. The Supreme Court was to take over the judicial work of the HOL and create a reduced role for the Lord Chancellor. Appointments to the judiciary to be made by the Judicial Appointments Committee
- Devolution: The devolving of powers away from central government. Resulted in the creation of a Scottish Parliament, and a Welsh and Irish Assembly. The West Lothian Question arises from this.