What is a constitution?

Definition of a constitution
set of rules that govern an organisation . Can limit Executive, Subordinate Local bodies (i.e. local authorities), at times legislature  Country’s constitution will be supreme over a government
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Sir Ivor Jennings (1908-65) Defintion
 Document in which are set of rules governing the composition, powers and methods of operation of the main institutions of government; and the general principles applicable to their relations to the citizens.
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Plato (BC 348) described constitution as.....
 Some body of law should exist on a permanent basis, on a superior plane- neither subject to individual tyranny, nor to raw majority democracy
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Why has the UK avoided the constitution?
• UK has NOT adopted a codified constitutional text (been political stable since idea of codified constitutions)  Unwritten (uncodified) constitution  Significant rules are written down (AOP, Judgments of UK Courts)
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Why has the UK avoided the constitution?
 Important rules in for of constitutional conventions, Non-legal rules cannot be enforced by by court  Written in official documents  the Cabinet Manual
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Why has the UK avoided the constitution?
• THEORIST  Thomas Paine  (1737-1809)  shared the assumption that men had universal and inalienable rights including political equality, free speech and freedom for arbitrary arrest.
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Why has the UK avoided the constitution?
• After political struggle by the Suffragettes 1928  same for both genders to vote in parliamentary elections:  Representation of the Peoples Act 1932
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Why has the UK avoided the constitution?
• British Politicians like the flexibility of uncodified constitutions as it provides minimal constraints on their power • 2010-2015 HOC political and constitutional reform committee long enquire in ADV/DISAV on codified constitution
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Consequences of the lack of codified constitutional text
• British constitution (NOT written down in one supreme codified legal document) (describe as ‘flexible’ and political’) system is unusual in several ways:
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Consequences of the lack of codified constitutional text
1. NO national law has higher status than AOP ‘Parliamentary Supremacy’ 2. NO formal or special process for amending the constitutional system
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Consequences of the lack of codified constitutional text
3. British Constitution has become unstable reforms from labour Gov 1997-2010. Changes included devolution (decentralisation led to demand for greater powers in Scotland/Wales (independence referendum 2014)
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Consequences of the lack of codified constitutional text
• Constitution contains statements of people’s basic rights and freedoms and prohibitions on unjustified discrimination
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Constitutional rules in AOP
• AOP described as ‘Constitutional’ by Anthony King: ‘Important rules that regulate the relations among the different parts of government of a given country and also the relations between the different parts of the government and the people of the co
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Political constitutionalism
• Set of ideas and practices that value the role of politicians • Sceptical about constitutional role of the judiciary
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Political constitutionalism
• Professor Tomkins  praises Parliament and warns against trusting the Courts • Political Constitutionalists see no value and many dangers in UK adopting a codified constitution
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Legal constitutionalism
• Concentrates on the role of the judiciary and their control of abuse of power by the executive • Stress the role of the courts in controlling power
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Legal constitutionalism
• Favour a prominent role of law, legal process and judges in regulating the constitutional system • If asked would probably support the introduction of a codified constitution, in UK, enforced and interpreted by Judiciary
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Legal constitutionalism
• In absence of codified constitution, many legal constitutionalist welcome the creative development of common law, to ensure that legal values permeate the current constitutional system (Common Law Constitutionalism)
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Legal constitutionalism
 R v Lord Chancellor, ex parte Witham (1997) Laws LJ
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Constitutional Convention DEFINTION:
conventions as ‘rules of constitutional practice that are regarded as binding in operation but not in law
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Constitutional Convention
Jennings Test (Sir Ivor Jennings: Law and Constitution (1959):
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Jennings Test
1. What are precedents?2. Did the actors in the precedents believe they are bound by the rule? 3. Is there a good reason for the rule?
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Dicey and convention
DICEY: drew sharp distinction between laws ‘in the strictest sense’ and constitutional conventions.
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Dicey and convention
in the strictest sense’ (since rules are written and unwritten) o constitutional conventions
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International law
• Until 1950’s  subject matter was largely confined to high level agreements between the gov of nation states that had little impact on either internal constitutional agreements or the rights of individual citizens  past 50 years  changed dramatic
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International law
• J.Crawford ‘Treaties’  Treaty is an agreement under international law, usually between states but also between other subjects of international law, in particularly international organisations. There is no specific requirements of form, through the
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International law
• Constitutional system vary in terms of how they recognise treaties:  Monist system  Dualist system
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Is there an obligation on the government to respect international law?
R(SG) v Secretary of State for Work and Pensions (Child Poverty Action Group Intervening)(2015)
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Wheare's classification of constitution
look at revision notes
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Historical foundations of UK constitution
 Magna Carta 1215  guranteed all free men, immunity from illegal imprisonment (a) Proclaimed king was accountable to law. 63 clauses still in law today  right to fair trail  Bill of Rights 1689 Art 9  freedom of speech  HRA 1998  fundamental
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What makes the UK constitution?
• Common law (Judical precedent) • AOP (statues) • Conventions • Rules and regulations of governmental behaviour
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AIM HIGHER 1
• UK constitution is a ‘whole system of gov… (with a)… collection of rules which establish and regulate or govern the Gov (Wheare)
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AIM HIGHER 1
• The system is based on a combination of ‘AOP and judicial decisions…. Political practice… and detailed procedures established by various organs of Gov for carrying out their own tasks (Bradley A and Ewing K)
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AIM HIGHER 2
• Additional credit will usually be given for the fact that the UK has (a) Flexible constitution (b) Unitary constitution (c) Limited monarchy (d) No strict separation of powers
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Card 2

Front

 Document in which are set of rules governing the composition, powers and methods of operation of the main institutions of government; and the general principles applicable to their relations to the citizens.

Back

Sir Ivor Jennings (1908-65) Defintion

Card 3

Front

 Some body of law should exist on a permanent basis, on a superior plane- neither subject to individual tyranny, nor to raw majority democracy

Back

Preview of the back of card 3

Card 4

Front

• UK has NOT adopted a codified constitutional text (been political stable since idea of codified constitutions)  Unwritten (uncodified) constitution  Significant rules are written down (AOP, Judgments of UK Courts)

Back

Preview of the back of card 4

Card 5

Front

 Important rules in for of constitutional conventions, Non-legal rules cannot be enforced by by court  Written in official documents  the Cabinet Manual

Back

Preview of the back of card 5
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