A very brief summary: What is a Constitution?

Usual exam question to consider: Would a written constitution make a great improvement to the UK system of government?

1.What is a constitution for?

• people need to know who has the power to make decisions or take actions
• It grants legitimacy to the state and it’s governance
  provides for how the state is to be governed
• limits the power of those who govern, and make sure they do not behave in an arbitrary manner
• protects the individual citizen
• It states who has the power to do what who can make law and who has the power to decide?

2. When is a constitution usually created?

• following major upheaval such as independence or revolution
  it’s usually a dramatic break from the past and follows a desire to make a fresh start e.g 18th century US gained independence from UK. French Revolution overthrowing King Louis XVI. Another example is South Africa following apartheid.
• England was one of the first to have a constitution with Cromwell’s Instrument of Government in 1653. Only lasted 7 years before old system of royal government was restored.
• In the UK there has never really been a need for a drastic break from a past which required/ engendered desire from people to make a clean sweep and have a written constitution.

3. Why can constitutions be seen as important

• they have legal status, sometimes as higher law with a special amendment procedure.
• Constitution of the US 1787 a classic model of a written constitution. With a preamble declaring values and principles. UK has no such things, instead writers such as Dicey put forward theories/ ideas on what our constitutional values are.
• a constitution may set out a special procedure under which it can be changed e.g Article V of the US Constitution. No such special procedure to change UK constitution.
• Constitution of federal country will outline the federal structure, the powers e.g US, Canada, Germany examples of Federal states, as they were separate countries which  joined to form a new single federal state. UK is a union of once separate countries HOWEVER it’s not federal.
• Parliament retains full supremacy despite granting varying degrees of self governing to Scotland and Northern Ireland, Parliament can in theory repeal those acts and take back full governing power. But would they do this?
• There are therefore issues of political acceptability and acceptance

4. Why is The Bill of Rights contained in a constitution important?

• it lists rights to which a citizen is entitled and these are constitutionally protected and can’t be easily taken by the Executive or Legislature
• UK Bill of Rights 1689- limited as it was designed to reduce the King’s power.
• Human Rights Act 1998 (HRA), gives domestic force to most of the ECHR 1950. HOWEVER section 3 HRA 1998, carefully preserves the supremacy of parliament.
• UK courts can’t strike down an Act of Parliament (AoP) even if they go against Uman Rights (HRs) an AoP can still restrict HRs
• Written constitutions can provide an ‘organisation chart’ i.e is there a PM or President or both, it can define such a leader’s powers,who has the power to make law, who appoints judges etc etc
• In UK the system of governance has just sort of evolved over the centuries. There is no law that says there has to be a PM, it’s just down to convention. UK Head of State is Monarch and that’s down to common law.

5. So what are the sources of the UK constitution?

Acts of Parliament:

• constitutionally significant, Act of Settlement 1700 and European Communities Act 1972
• HRA 1998- made positive HRs directly enforceable in UK courts for the first time
• Constitutional Reform Act 2005- strengthens the separation of powers. Indicates nothing is permanent in uk constitution and everything may change.

Case Law:

• Principle of Parliamentary sovereignty reaffirmed in Pickin v BRB 1974 by the House of Lords. Later moderate it to take into account membership of the EU in Factortame 1991.
• All legal cases constitutional or not go through the same court system in the UK. No distinct Constitutional Court that deals with constitutional issues. Supreme Court no way mirrors US Supreme Court for example.
• Historic documents e.g Magna Carta 1215 and Bill of Rights 1689, establish constitutional principles but they do not have special formal legal status of a written constitution.

Constitutional Conventions

• these are habits or practices that regulate the conduct of the sovereign powers, however in reality they aren’t laws as they are not enforced by the law. As defined by Dicey.
• simply put conventions aren’t law so they are not enforceable. Attorney General v Jonathan Cape 1976
• They are both not constant yet constantly changing, e.g a minister in 1950s found to be having an extramarital affair or being homosexual would have had to resign, but not necessarily today.

6. Advantages of an unwritten constitution.

• the ability to evolve with flexibility can be difficult to change a written one.
• even if there is a written one it may not reveal the full constitutional position
• It’s not possible to write down everything
  AoP form much of the UK constitution and this perhaps reflects UKs individual history of being one of the oldest unified states in the world.

7. Disadvantages of an unwritten constitution.

• if everything can easily change protection of individual liberties may be less strong
• might be difficult to establish the true constitutional position on which one stands as a citizen or even a politician
• Does PM and the governments have too much power they can simply use an AoP to enforce almost anything they want..

Information summarized from:

• British Government and the Constitution:Colin Turpin, Adam Tomkins, Cambridge University Press, 1 Sep 2011