3.1.1.1 The Nature & Sources of the UK Constitution Key questions: What is a constitution? What do we mean by uncodified and codified constitution? What key principles underpin the UK constitution? What are the strengths and weaknesses of the UK constitution? What constitutional reform has taken place since 1997 and how significant has it been? Should the UK adopt a codified constitution?

Sunday, 2 October, 2016, Theresa May announced that the government would be presenting a ‘Great Repeal Bill’ to Parliament. The purpose being to overturn the European Communities Act 1972 and thus removing the supremacy of European Union law over UK law. In other western democracies this would require a formal constitutional amendment but the doctrine of parliamentary sovereignty and the supremacy of statute law in the UK means that it is just as easy to remove the UK as it was to submit to it back in 1972. This is in large part a result of our uncodified constitution. This enables our institutions and systems to respond to immediate threats and challenges without resorting to multi-stage procedures but it can also leave the system wide open to ill-conceived changes that threaten individual freedoms and undermine the principles upon which our system of government was founded.

Key Terms – add definitions Constitution – a body of laws, rules and practices that sets out the way in which a state or society is organised. It established the relationship between the state and its citizens and between the different institutions within the state. It provides a framework for the political system – main institutions of government, where decision-making authority resides and protecting basic rights of citizens (often in a formal Bill of Rights).

Key Terms – add definitions Limited government – a system in which the powers of government are subject to legal constraints as well as checks and balances within the political system. This defends against any abuse of power by the state. The judiciary can decide if a state has acted lawfully and legitimately (constitutionally) or not (unconstitutionally). Do not assume that all constitutions are fair and neutral!

Key Terms – add definitions Codified constitution – a single authoritative document that sets out the laws, rules and principles by which a state is governed, and which protects the rights of citizens. For example, the US Constitution – it is given a capital ‘C’ because it assumes an almost iconic position in the nation’s psyche.

Key Terms – add definitions Uncodified constitution – a constitution where the laws, rules and principles specifying how a state is to be governed are not gathered in a single document. Instead, they are found in a variety of sources – some written (e.g. statute law) and some unwritten (e.g. convention). E.g. the UK constitution. ‘Unwritten’ is misleading as many of the practices and principles are ‘written’ in common law (decisions of the higher courts) and others in statute law (Acts of Parliament) or other historical documents. NB important that they understand that distinction between the two is not clear-cut. Impossible for any codified constitution to incorporate every practice or cover every eventuality. A codified constitution is a reference point to be built upon. Similarly, an uncodified constitution could not be entirely unwritten. All constitutions will have a mix of written and unwritten elements.

Key Terms – add definitions Fundamental Law – constitutional law that is deliberately set above regular statute in terms of status, and given a degree of protection against regular laws passed by the legislature. A feature of codified constitutions, which are generally created at a critical point in a nation’s history e.g. independence, authoritarian rule, war and/or occupation. At this point, codified constitutions are afforded the status of fundamental law. US Constitution, 1789; Spanish Constitution, 1978;

Key Terms – add definitions Entrenched – the provisions of codified constitutions are invariably entrenched (‘dug in’), meaning that special procedures are needed for amendment. Amending a constitution will generally require a supermajority in excess of 50% in the legislature and/or approval by national referendum. This feature means that codified constitutions are often seen as rigid, while uncodified are seen as more flexible. Not always the case – 1958 constitution of the French Fifth Republic amended 17 times in 50 years; US Constitution has seen only 17 amendments since Bill of Rights in 1791.

The UK’s uncodified constitution ‘Parliament can do everything that is not naturally impossible.’ William Blackstone, 18th century constitutional lawyer. Lack of entrenched or superior fundamental law in the UK means that our constitution can be amended by a simple Act of Parliament. Doctrine of parliamentary sovereignty maintains legislative supremacy of parliament, enabling it to pass laws on any matter and to overturn any existing laws.

Quick recap Kahoot quiz – can you decide whether the statements are features of a ‘codified’ or ‘uncodified’ constitution?

Independent Study Read a blog post from your designated person and prepare to feed back to them: what did you find interesting? What did you learn? Did it make you want to do additional research? Did it get you thinking? Research the US Constitution and one other codified constitution of your choice. Look at the kind of provisions that they include. What features do they share in common? In what ways do they differ? Write a blog post with your findings.

Key Terms of the UK constitution Uncodified constitutions tend to draw on a range of sources. In the case of the UK constitution, it is possible to identify 5 such sources: Statute law Common law Conventions Authoritative works European Union law and treaties

Key Terms of the UK constitution Statute Law law derived from Acts of Parliament. Acts of Parliament have to be approved by the House of Commons, the House of Lords and the monarch before entering the statute books. They are then implemented by the executive and enforced by the courts. Not all Acts of Parliament are of constitutional importance because they do not impact on the fundamental relationship between state and people e.g. 1991 Dangerous Dogs Act.

Key Terms of the UK constitution Statute Law is the supreme source of constitutional law in the UK because parliament is sovereign. Historically important statute law: Great Reform Act, 1832, extended the franchise Parliament Acts, 1911 and 1949, established the House of Commons as the dominant chamber in our bicameral parliament. European Communities Act, 1972, incorporated the Treaty of Rome (1958) into UK law.

Key Terms of the UK constitution Recent examples: Scotland Act 1998, which created a Scottish Parliament. Human Rights Act 1998, which incorporated the rights set out in the European Convention on Human Rights (ECHR) into UK law. Fixed-term Parliaments Act 2011, which established fixed, 5-yearly elections to the Westminster Parliament.

Key Terms of the UK constitution Common Law is law derived from general customs of traditions and the decision of judges. Senior judges in the UK’s higher courts use their power of judicial review to clarify or establish a legal position where statute law is absent of unclear. Establishes legal precedent that guides lower courts and future lawmakers. Common law precedent can be overturned by an Act of Parliament – why? Sovereignty of parliament and supremacy of statute law.

Key Terms of the UK constitution The royal prerogative is an example of ‘common law’. The royal prerogative refers to the powers exercised (by government) in the name of the Crown. The Crown retains a number of formal powers that date back to the period before the UK began to morph into a constitutional monarchy. These include the right to: Appoint ministers and choose the prime minister. Give royal assent to legislation. Declare was and negotiate treaties. Sovereignty of parliament and supremacy of statute law.

Key Terms of the UK constitution Measures designed to limit the royal prerogative and enhance the role of parliament: 2011 Fixed-term Parliament Acts ended the prerogative power to dissolve parliament. 2010 Constitutional Reform and Governance Act put the parliamentary scrutiny of treaties on a statutory basis. However, 1999, advised by the government, the monarch withheld consent to a members’ bill which sought to transfer the power to declare was from monarch to parliament. Sovereignty of parliament and supremacy of statute law.

Key Terms of the UK constitution Conventions – established norms of political behaviour; rooted in past experience rather than the law. Neither codified nor legally enforceable. 2011 Cabinet Office Manual sought to bring them together in a single document. Extended use over time gives conventions their authority e.g. monarch giving assent to Acts of Parliament – no monarch has refused assent since 1707 when Queen Anne refused to approve the Scottish Militias Bill. Therefore if a monarch refused a bill today it would lead to a constitutional crisis. Sovereignty of parliament and supremacy of statute law.

Key Terms of the UK constitution Authoritative works (‘works of authority’) Erskine May’s A treatise on the law, privileges, proceedings and usage of Parliament (1844) Walter Bagehot’s The English Constitution (1867) A. V. Dicey’s An introduction to the Study of the Law of the Constitution (1885) Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Parliamentary sovereignty The rule of law A unitary state Parliamentary government under a constitutional monarchy Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Parliamentary sovereignty The doctrine that parliament has absolute legal authority within the state. It enjoys legislative supremacy: parliament may make law on any matter it chooses its decisions may not be overturned by any higher authority it may not bind its successors. Parliamentary sovereignty holds that the Westminster Parliament is the supreme law-making body. Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution CASE STUDY Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Rule of Law a legal theory holding that the relationship between the state and the individual is governed by law, protecting the individual from arbitrary state action. A. V. Dicey (1885) No one can be punished without trial. No one is above the law, and all are subject to the same justice. The general principles of the constitution, such as personal freedoms, result from judge-made common law, rather than from parliamentary statute or executive order. Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Rule of Law in practice: Everyone is equal under the law. The courts can hold government ministers, polic officers and public officials accountable. Laws passed by parliament must be interpreted and applied by an independent judiciary. Citizens can take the government or a local authority to court if they feel they have been treated improperly. Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Unitary state - a unitary state is one in which sovereignty is located at the centre. Central government has supremacy over other tiers of government, which it can reform or abolish. A unitary state is a centralised and homogeneous state – political power is concentrated in central government and all parts of the state are governed in the same way. Sovereignty of parliament and supremacy of statute law.

4 key principles of the UK constitution Sovereignty of parliament and supremacy of statute law.