Public essay plans
Table of Contents
The UK constitution............................................................................................................1
Parliamentary supremacy..................................................................................................8
Separation of powers.......................................................................................................13
Should we have a written constitution?............................................................................18
Should the UK adopt a bill of rights?................................................................................21
Rule of law: extent to which the courts have to uphold the ROL.......................................21
Justification for JR............................................................................................................23
Conflicting rights 8 v 10....................................................................................................31
What is meant by a constitutional convention?................................................................35
Manner and form debate.................................................................................................37
The UK constitution
The constitution The UK constitution has three main features: It defines a state’s fundamental political
principles, it establishes a governmental framework of the particular state, and finally it
ensures freedoms and rights are guaranteed to individuals within the state. The UK
constitution is unwritten, meaning that it is not made up of or neither a single document
nor a single source. This is contrary to the US which has a written constitution. There are
four main sources of the constitution, namely statutes, case law, conventions and the royal
prerogative Each of these sources will be discussed followed by an analysis of the
importance of constitutional conventions in order to give meaning to the legal rules, as
discussed by Barnett
Source Background Flexible Rigid Analysis
Statutes Passed by parliament Parliament can introduce Limited due to political
(AoP) statutes at any time repercussions
LEGAL Have developed (doctrine of
SOURCE through common law parliamentary If parliament changed a
supremacy – parliament statute of
Legal source of the can make and unmake constitutional
constitution any law it wants at any importance = it would
time) result in crisis
Important as seen in Constitutional statutes
long history No formal entrenchment follow the same
Magna Carta 1215 (no special procedure to procedure as ordinary
HRA 1998 (which change or amend the statutes HOWEVER
incorporates ECHR into constitution) = contrast Thoburn highlights that
our legal system) to the US which is although there is no
,Bill of Rights 1989 entrenched and has formal entrenchment.
Parliament acts 1911 special procedures in Thoburn suggests that
and 1949 order to change perhaps constitutional
Constitutional reform constitution statutes are slightly
Act 2005 harder to repeal
Fixed term parliament Speed of introduction of
act 2011 statutes covid and
restriction of movement changing the HRA
(The Covid Act 2020) wouldn’t necessarily be
Including: a bad thing, but people
Part 1 Main Provisions: would kick off from
‘emergency registration fear that the ‘reform’ is
of health care actually going to
professionals’ remove rights
‘emergency volunteers’ there is a long process
to creating statutes:
‘power to suspend port process = first reading,
operations’ second reading,
committee stage,
‘court and tribunals: use report stage, third
of video and audio reading, proceedings in
technology’ House of Lords,
amendments by Lords
‘Postponement of (bill is sent back to
elections: Wales’ commons if any
amendments are
Labour government made. If commons
1997-2010 disagree with Lords’
House of Lords Act 1999- amendments and
exclusion of hereditary restore it to its original
peers wording, lords usually
accept BUT they can
Devolution & Regional amend it and send it
Government (The back to commons),
Scotland Act 1998, The royal assent
Government of Wales
Act 1998)
Bill of Rights (Human
Rights Act 1998)
Freedom of Information
Act 2000 (right for
anyone to ask a public
body for particular
information)
, Constitutional Reform
Act 2005 setting up the
UK Supreme Court and
increasing the
independence of the
Judiciary
These reforms were
conducted on an ad hoc
basis, with no systemic
overhaul of the
constitution.
Case law Legal source Based off of judges’ Judges are not able to Case law (like
LEGAL decisions and so there is strike down acts of statutes) = more
SOURCE Developed common no formal process like parliament or declare flexible in theory
law case law them unconstitutional,
however, the judiciary
Judges’ decisions on Based off of what society can keep the executive
cases have formed new deems to be moral at the in check through JR,
precedents on future time ultimately upholding
cases the ROL = procedural
As socio-political views impropriety and rules
Case law has change, so can the of natural justice = rule
established important judges’ decisions and in against bias (ex p
rights for individuals: turn so can case law Pinochet Ugarte) and
Belmarsh = stopped right to a fair hearing
unlawful detention of Judges change law which should be ‘fair
terrorists and enforced through statutory and reasonable in all
Habeas Corpus and interpretation through the circumstances’
individual liberty the purposive approach. (Lloyd v McMahon)
If views are changing, the
Case law established law will have a differentThey can only interpret
that actions against the purpose and can be the case in front of
state must have legal interpreted in line with them. They would have
authority (Entik v that purpose to wait until the
Carringron) relevant statute is in
s3 HRA states that the front of them to
courts are instructed to change it, rather than
interpret in line with choosing themselves
ECHR = Ghaidan v Godin- what they would like to
Mendoza (read to change
include same-sex couples
in houses) and therefore Doctrine of precedent=
set new precedents = it judges don’t
was possible under the necessarily have a
, Human Rights Act 1998 choice on whether to
s.3 to interpret the Rent apply a case as they
Act 1977 Sch.1 para.2 so may be bound by a
that it was compliant higher court’s previous
with the rights set out in decisions. There has to
the Human Rights Act be a legal basis for the
1998 Sch.1 Part I. process (one of Dicey’s
Paragraph 2 provided for principles: There
the succession rights of should be no arbitrary
surviving spouses and or retrospective laws)
those who lived together
as husband and wife. =
interpreted to same-sex Changing case law can
couples be a slow and timely
process = may have
limited impact short
judicial interpretations (R term
v R 1991) – man was
charged with raping his Statute can override
wife after they had case law (burhah oil) –
agreed to start divorce war damages act was
proceedings (at time it applied retrospectively
wasn’t legally possible
for man to rape his wife).
Court convicted him of
attempted rape and
assault. Legislation was
re-interpreted and Lord
Keith said: ‘the common
law is capable of evolving
in the light of changing
social, economic and
cultural developments)
judicial review = the
judiciary ensuring that
the government and
other public bodies act
within the powers
granted to them by
parliament. They assess
the legality of the
decision and not the
merits
Conventions ‘the flesh that clothes No particular step in Some conventions are Some conventions
NON-LEGAL the dry bones of the order for their creation changed easier than are more flexible
SOURCE law’ (Jennigs) or disappearance others than others = queen
Table of Contents
The UK constitution............................................................................................................1
Parliamentary supremacy..................................................................................................8
Separation of powers.......................................................................................................13
Should we have a written constitution?............................................................................18
Should the UK adopt a bill of rights?................................................................................21
Rule of law: extent to which the courts have to uphold the ROL.......................................21
Justification for JR............................................................................................................23
Conflicting rights 8 v 10....................................................................................................31
What is meant by a constitutional convention?................................................................35
Manner and form debate.................................................................................................37
The UK constitution
The constitution The UK constitution has three main features: It defines a state’s fundamental political
principles, it establishes a governmental framework of the particular state, and finally it
ensures freedoms and rights are guaranteed to individuals within the state. The UK
constitution is unwritten, meaning that it is not made up of or neither a single document
nor a single source. This is contrary to the US which has a written constitution. There are
four main sources of the constitution, namely statutes, case law, conventions and the royal
prerogative Each of these sources will be discussed followed by an analysis of the
importance of constitutional conventions in order to give meaning to the legal rules, as
discussed by Barnett
Source Background Flexible Rigid Analysis
Statutes Passed by parliament Parliament can introduce Limited due to political
(AoP) statutes at any time repercussions
LEGAL Have developed (doctrine of
SOURCE through common law parliamentary If parliament changed a
supremacy – parliament statute of
Legal source of the can make and unmake constitutional
constitution any law it wants at any importance = it would
time) result in crisis
Important as seen in Constitutional statutes
long history No formal entrenchment follow the same
Magna Carta 1215 (no special procedure to procedure as ordinary
HRA 1998 (which change or amend the statutes HOWEVER
incorporates ECHR into constitution) = contrast Thoburn highlights that
our legal system) to the US which is although there is no
,Bill of Rights 1989 entrenched and has formal entrenchment.
Parliament acts 1911 special procedures in Thoburn suggests that
and 1949 order to change perhaps constitutional
Constitutional reform constitution statutes are slightly
Act 2005 harder to repeal
Fixed term parliament Speed of introduction of
act 2011 statutes covid and
restriction of movement changing the HRA
(The Covid Act 2020) wouldn’t necessarily be
Including: a bad thing, but people
Part 1 Main Provisions: would kick off from
‘emergency registration fear that the ‘reform’ is
of health care actually going to
professionals’ remove rights
‘emergency volunteers’ there is a long process
to creating statutes:
‘power to suspend port process = first reading,
operations’ second reading,
committee stage,
‘court and tribunals: use report stage, third
of video and audio reading, proceedings in
technology’ House of Lords,
amendments by Lords
‘Postponement of (bill is sent back to
elections: Wales’ commons if any
amendments are
Labour government made. If commons
1997-2010 disagree with Lords’
House of Lords Act 1999- amendments and
exclusion of hereditary restore it to its original
peers wording, lords usually
accept BUT they can
Devolution & Regional amend it and send it
Government (The back to commons),
Scotland Act 1998, The royal assent
Government of Wales
Act 1998)
Bill of Rights (Human
Rights Act 1998)
Freedom of Information
Act 2000 (right for
anyone to ask a public
body for particular
information)
, Constitutional Reform
Act 2005 setting up the
UK Supreme Court and
increasing the
independence of the
Judiciary
These reforms were
conducted on an ad hoc
basis, with no systemic
overhaul of the
constitution.
Case law Legal source Based off of judges’ Judges are not able to Case law (like
LEGAL decisions and so there is strike down acts of statutes) = more
SOURCE Developed common no formal process like parliament or declare flexible in theory
law case law them unconstitutional,
however, the judiciary
Judges’ decisions on Based off of what society can keep the executive
cases have formed new deems to be moral at the in check through JR,
precedents on future time ultimately upholding
cases the ROL = procedural
As socio-political views impropriety and rules
Case law has change, so can the of natural justice = rule
established important judges’ decisions and in against bias (ex p
rights for individuals: turn so can case law Pinochet Ugarte) and
Belmarsh = stopped right to a fair hearing
unlawful detention of Judges change law which should be ‘fair
terrorists and enforced through statutory and reasonable in all
Habeas Corpus and interpretation through the circumstances’
individual liberty the purposive approach. (Lloyd v McMahon)
If views are changing, the
Case law established law will have a differentThey can only interpret
that actions against the purpose and can be the case in front of
state must have legal interpreted in line with them. They would have
authority (Entik v that purpose to wait until the
Carringron) relevant statute is in
s3 HRA states that the front of them to
courts are instructed to change it, rather than
interpret in line with choosing themselves
ECHR = Ghaidan v Godin- what they would like to
Mendoza (read to change
include same-sex couples
in houses) and therefore Doctrine of precedent=
set new precedents = it judges don’t
was possible under the necessarily have a
, Human Rights Act 1998 choice on whether to
s.3 to interpret the Rent apply a case as they
Act 1977 Sch.1 para.2 so may be bound by a
that it was compliant higher court’s previous
with the rights set out in decisions. There has to
the Human Rights Act be a legal basis for the
1998 Sch.1 Part I. process (one of Dicey’s
Paragraph 2 provided for principles: There
the succession rights of should be no arbitrary
surviving spouses and or retrospective laws)
those who lived together
as husband and wife. =
interpreted to same-sex Changing case law can
couples be a slow and timely
process = may have
limited impact short
judicial interpretations (R term
v R 1991) – man was
charged with raping his Statute can override
wife after they had case law (burhah oil) –
agreed to start divorce war damages act was
proceedings (at time it applied retrospectively
wasn’t legally possible
for man to rape his wife).
Court convicted him of
attempted rape and
assault. Legislation was
re-interpreted and Lord
Keith said: ‘the common
law is capable of evolving
in the light of changing
social, economic and
cultural developments)
judicial review = the
judiciary ensuring that
the government and
other public bodies act
within the powers
granted to them by
parliament. They assess
the legality of the
decision and not the
merits
Conventions ‘the flesh that clothes No particular step in Some conventions are Some conventions
NON-LEGAL the dry bones of the order for their creation changed easier than are more flexible
SOURCE law’ (Jennigs) or disappearance others than others = queen
