The Constitution

Nature of the UK Constitution

Definition: Heywood (2002). A set of rules that establish the duties, powers and functions of

the institutions of government and define the relationship between the state and the individual.

According to Swinburne and ***** a constitution should contain rules regarding the three main elements of a political system:

• The relationship between central and local government• The relationship between the institutions of central

government• The relationship between the government and the citizenry.

Constitutionalism:The concept that a political system is governed by a

constitution and that political institutions are bound by constitutional rules which are binding (McNaughton 2012).

Two aspects of constitutionalism are: Codification – the process of setting out the constitution

in an organised way, in a single document. Entrenchment – this means that there are special

arrangements in place for amending a constitution. These should be more difficult than passing ordinary laws.

A constitutional government is one that operates within a set of legal and institutional constraints that both limit its powers and protect individual liberty.

Types of constitutional government:o Parliamentary - a system in which government governs in and through

parliament, thus ‘fusing’ the legislature and the executive, for example, the UK.

o Presidential – a system in which executive authority is concentrated in the hands of a president, whose office is politically and constitutionally separate from the legislature, for example, the USA.

o Republic- a system in which citizens have an active role in the affairs of government; government is not headed by a hereditary ruler, for example, the USA .

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Types of Constitutions

Rigid and flexible constitutions: A rigid constitution is not easily amended. A special

process is required to change such a constitution. This type of constitution is written and is the fundamental law. Any other law which is passed is subordinate to the constitution.

A flexible constitution is regarded as unwritten or uncodified. It is easily amended without the use of special procedures. Parliament can alter the constitution by passing a law.

Sources and Nature

As the UK does not have a codified document, it key rules and practices are found in a number of sources.

• Statute law- this is law created by Parliament and approved by the Commons, the Lords and the Monarch. Any law that involves constitutional relationships become part of the constitution. Examples: the Parliament Acts 1911 and 1949 established the dominance of the House of Commons over the Lords; the European communities Act 1972 by which the UK joined the European Common Market; the Human Rights Act 1999 which enshrined key rights into UK law.

• Common law – a body of law that is based on tradition, custom and precedent. Though based on custom, common law has acquired the force of law. The courts have refined common law on a case by case basis by means of precedent i.e . judgments in similar cases are taken as binding in later cases. Examples of common law principles are, the right of people to free movement and to gather for public demonstrations, the Crown could not detain citizens without trial.

• Tradition – many of the procedures that govern the Houses of Parliament, for example, the Queen’s Speech is traditional in nature. So too are many of the rules that govern debates.

• Conventions – these are rules of political practice that have been adhered to for such long period that they are regarded as binding. They are neither codified nor enforceable by law so there is no punishment if they are breached. Examples: the government must resign or request a dissolution of Parliament if it loses a vote of no confidence in the House of Commons; the Queen must act on the advice of Cabinet; the House of Lords must not block any legislation outlined in the ruling party’s most recent manifesto (the Salisbury Convention)

Europe By signing international treaties and

agreements, for example, with the UN and NATO, the British constitution is constantly expanding. The most significant new source of the Constitution in recent years has been the EU. When Britain signed the Treaty of Rome in 1972, it accepted the superiority of European law.

Major Political Works and WritersPolitical commentators through political and legal texts

may influence judges interpretation of the law. Some works become accepted as authorities on the UK constitution. Examples:

• Walter Bagehot’s “The English Constitution”• Erskine May’s “ Treatise on the Law, Privileges Proceedings and Usage of Parliament”• A. V. Dicey’s “An Introduction to the Study of thr Law

and the Constitution”

TO BE CONTINUED