Unit 2 - The Constitution

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  • Created by: Julia
  • Created on: 25-04-13 18:25

Strengths & weakneses of a codified constitution


  • Provides greater clarity on what is and isn't constitutional
  • Set out in the authoritative document - reduces the ambiguities that exist in an uncodified constitution
  • The rights of citizens have further constitutional protection
  • Tackles the centralisation of power - setting limits on the power of the executive 
  • Local and sub national governments enjoy constitutional protection
  • Would set limits on the powers of the state and its institutions
  • Would be better inform citizens about the values and workings of the pol. system


  • Is inflexible, not easy to change with public opinion and attitudes 
  • Puts much power in the hands of judges - a gov. acting on a popular mandate may find that it's legislation is overturned by the courts
  • Incompatible with parliamentary sovereignty and would not be able to be entrenched (an advantage of a codified constitution) as any future parliament has the will to alter it
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Sources of the British constitution

  • Statute law - law derived from acts of parliament and subordinate legislation, this is the most important source of the principles and rules of the British constitution e.g . the Human Rights Act (1998) and the Parliament Act (1911) - established H of C as dominant chamber
  • Common law - derived from decisions in court cases and general customs through actions of judges. Most traditional civil liberties, including freedom of speech and the royal prerogative was established in common law e.g. the rights of homeowners to tackle intruders who enter their property
  • Conventions - traditions or customs that have evolved over time and have become accepted rules of behaviour, the flexibility of the British constitution is largely due to convention e.g. Ministerial responsibility
  • Authoritative works - scholarly texts serving to codify practices not outlined on paper elsewhere, although on persuasively constitutional they have been used as constitutional references for over 100 years (which affords some status) e.g. Walter Bagehot's The English Constitution (1867)
  • EU law - Under the European Communities Act (1972), the UK incorporated the Treaty of Rome (1957) into UK law. This gave European laws and treaties precedence over our own national laws, although parl. still reserves right the repeal the Act
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Fusion and separation of powers

Parliamentary sovereignty has contributed to the centralisation of power in the UK. In the USA, has three branches (legislative, executive and judiciary)  which are separate, in the UK these are fused, although the judiciary no longer is, the executive dominates the legislature as members of government are also members of parliament. The executive controls the parliamentary timetable and can normally use parliamentary majority to push through legislation. This may be called elective dictatorship. There has been a growing separation within the UK between parliament and the Judiciary with the downgrading of Lord Chancellor and the creation of a new UK Supreme Court, prior o this most senior judges  (Law Lords) sat in the H of L and the Lord Chancellor held significant roles in all three branches of government.

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The impact of HRA and ECHR on the political system

ECHR (1950) - established by the council of Europe - an intergovernmental body that is totally separate from the EU, alleged violations are investigated by the European Commission on Human Rights and tried in the European Court of Human Rights , based in Strasbourg. HRA (1998) - incorporated most of the articles of the ECHR into UK law

  • Introduced a new Human rights culture into British politics
  • Decisions by parliament, local authority or other public body must not infringe the rights guaranteed under the Act 
  • When rights conflict, courts decide where the balance should lie e.g. privacy vs. FOI 
  • Due to the HRA - citizens to pursue cases under the ECHR through UK courts, rather than directly to the ECHR, this costs a lot less money, time and effort so makes appealing cases more common
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How is Judicial Independence maintained?

  • Security of tenure - appointed for an open-ended term, limited only by requirement to retire by 75. So politicians cannot bring influence by threatening to sack/suspend
  • Guaranteed salaries - cannot be altered with aim of putting pressure on judges. The pay is put out of everyday political control and paid via the consolidated fund. This means judges can make decisions free of financial penalty (or gain)
  • Offence of contempt of court - under sub judice rules, the media, ministers and other individuals are prevented from publicly speaking out during legal proceedings (ensures justice is administered fairly without undue pressure)
  • Independent appointments system - constitutional reform act (2005) saw creation of independent JAC which lead to greater transparency with appointments
  • Growing separation of powers - downgrading of Lord chancellor and UK supreme court 
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How is judicial neutrality guaranteed?

  • Anonymity of senior judges - have traditionally operated away from the public eye and until recently judges rarely spoke out publicly on issues of law or public policy and senior judges are still expected to avoid being drawn into open defence of their rulings or criticism of those in government
  • Restriction on political activity - as with many senior civil servants, judges are not supposed to campaign on behalf of a political party or a pressure group . Although judges retain the right to vote, their political views or outlook should not become a matter of public regard
  • Legal justification of judgements - must offer explanation of how their decisions are rooted in law, so they are less likely to be guided by personal bias (and in the UK the justification of judges is published on their website)
  • Training - part of the highly trained profession, regulated by the Law Society. They have commonly served for many years as barristers before taking to bench
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What threatens judicial neutrality?

  • Narrow recruiting pool - drawn from privately schooled, Oxbridge educated, white middle class males over middle age and JAC has done little to address this problem 
  • Senior judges have been drawn into the political fray in recent years - resulting in politicisation of the judiciary

THOUGH this could be seen as a good as senior judges seem increasingly willing to take on the political establishment in defence of civil liberties

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Judicial Appointments Commission (JAC)

In 2003 Labour announced plans to reduce the power of the lord chancellor and place most senior Judicial appointments in the hands of the JAC - brought into law under the constitutional reform act (2005). It was thought to enhance the separation of powers and result in senior judiciary being more socially representative of the broader population. However, it became clear this "may take longer than expected". Of the 10 appointed by the JAC in 2008 - all were white, male former barristers, 6 of whom went to leading independent schools. In the first year of operation (06-07), only 8% (from 14%) were from Black/Asian background and 34% (from 41%) were women. However, the JAC has maintained its commitment to appointing "on merit and merit alone" so hopefully "diversity in the field, merit in selection".

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Powers of the UK judiciary

UK courts have no power to strike down any "unconstitutional" acts - unlike the in the U, because statute law remains the supreme source of constitutional law in the UK. However, judges do wield considerable power when reviewing the actions of government or government officials. Judges have key importance when it comes to ultra vires cases (where government officials have acted above the law). Their powers have also increased with the importance of EU law and the impact of the HRA (1998). In the wake of the factortame case (1990), UK courts have been able to "suspend" UK statutes that appear to be in violation of EU law. Under the HRA (1998) UK citizens can now have their issues heard in UK courts and UK courts can now issue a declaration of incompatibility where parliamentary statute violates rights guaranteed.

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Impact of the Supreme Court

  • Appointments and composition - the appointments process set up for the New Supreme Court is significantly more independent and less opaque than the system under which law lords were appointed previously
  • Power - no change in roles/power of court in move to middlesex Guildhall
  • Judicial independence - (on face) this has enhanced as a result of clearer separation of powers, however evidence of increasing friction between judiciary and leading politicians ahead of the creation of the new court suggests highest tier in the UK judiciary was already functionally independent
  • Physical separation - significantly taking law lords out of Westminster is likely to raise profile and engender greater public interest in court and allow it to develop distinctive identity
  • Less restriction with media - with regular televised sessions this should demystify senior judiciary and might result in new relationship with judges and media
  • Changes in ruling delivery - courts website has down loadable texts rulings => greater public scrutiny 
  • Court and government - changes outlined will affect relationship with other branches of government
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Relationship of judiciary to exec. & leg.

  • Judiciary is at a disadvantage as unlike the US supreme court (which can void Acts of congress), UK courts cannot declare parliamentary statutes unconstitutional(this is because statute law is the supreme source of constitutional law in the UK - what UK courts can do is review the actions of government officials in order to decide whether or not they have acted unlawfully (ultra vires)
  • UK courts can now suspend UK statutes that appear in violation of EU law after the Factortame case
  • Under the HRA, UK courts now have the right to issue a declaration of incompatibility where parliamentary statute appears to violate the rights set out in the HRA, however parliament is not obliged to amend the offending statute (though this is nearly always guaranteed) 
  • Judiciary is separate from the fused branches of executive and legislature 
  • As the judiciary enforces the law created by the executive/legislature so must be separate and neutral
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