Public law chapter 1 – constitution, development, conventions, separation of powers
What is a constitution?
“the backcloth of government and its powers…rules, written or unwritten…identifies the principal
institutions of the state, their powers and relationships with other state institutions and the
relationship between government and citizen” – Hilaire Barnett.
- It is a collection of rules that identify, regulate, and govern the manner in which the state’s
institutions operate and relate to one another.
- The constitution is regarded as the highest authority of law in a system of government –
Thomas Paine – “a constitution is a thing antecedent to government”.
- It makes provisions for individual rights, legitimizes, and sets out the scope of executive
power, and provides the foundation of the relationships between the institutions and
citizens.
- Paine implies that government institutions are bound by these rights and the limits of the
executive power.
- Paine also emphasises that democracy should be at the heart of the system – prevents the
abuse of power and infringement of rights.
The features of the UK constitution - uncodified
- It is uncodified – there are only 3 countries with an uncodified constitution. – it is set out
across various sources which are legal and non-legal, written, unwritten, and introduced at
various points in time.
- ^ made up of acts of parliament, case law, and constitutional conventions.
- R (Miller) v Secretary of State for Exiting the European Union – Supreme Court said “the
United Kingdom does not have a constitution in the sense of a single coherent code of
fundamental law which prevails over all other sources of law…have developed over time
in a pragmatic…principled way, through a combination of statutes, events, conventions,
academic writings and judicial decisions’.
- Its uncodified nature means that those laws relating to constitutional matters are part of the
ordinary law rather than of a special status and are subordinate to the sovereign authority
of the legislature.
Amending the constitution
- Because it is uncodified, the constitution can be amended with relative ease – it is
predominantly contained within the ordinary law and thus can be adjusted and amended
relatively easily through the ordinary process.
- The law is passed through a simple majority in both Houses of Parliament followed by royal
assent from the monarch.
- E.g. the Human Rights Act 1998 or the Constitutional Reform Act 2005 can be repealed just
as easily as any other Act of Parliament despite being central to the constitutional system of
the UK.
- “constitutions may be classified according to the method by which they may be amended…
flexible…rigid” – KC Wheare, Modern Constitutions (OUP 1966) 15-16
- The general argument is that uncodified constitutions are more flexible than codified –
comparison between the US and UK constitutions.
- ^ this flexibility relies on the fact that there is no distinction between laws pertaining to the
constitution and other laws – legally they are of the same force.
, - “flexibility to allow adaptation to…changing circumstance of society…carries with it a
danger that noting is sacred…secure from the priorities of the current government” –
Elizabeth Wicks, The Evolution of a Constitution…
- Barendt argues that the distinction between flexible and rigid constitutions is ‘rather
unhelpful’ for two reasons:
1. The group of flexible constitutions is too narrow based on this definition and this
category is not widely recognised – would only consist of three countries.
2. The constitutions termed rigid are so diverse – it is misleading to suggest that they are
impossible or difficult to amend as they differ considerably from one another.
Role of the Supreme Court (UK vs US)
- In the codified US, the Supreme Court’s role is to protect and uphold the provisions of the
constitution and is its ultimate interpreter.
- ^ has the power to scrutinise legislative and executive action in line with the constitution
and set aside primary legislation/ executive decisions.
- In the uncodified UK, in line with parliamentary sovereignty, the UKSC has no special powers
to question the sovereign parliament and its scope and ability to question the executive is
limited by the concept of justiciability.
- ^ the UKSC is simply the highest court of appeal atop the domestic judicial hierarchy – it
replaced the Appellate Committee of the House of Lords.
The UK Constitution as a legal and political constitution
- Legal constitution – legal principles, statutory provisions, and common law rules that make
up the substance of the constitution – enforced by various institutions of state (parliament,
executive, and courts).
- Political constitution – the substance and content of legislation is underpinned by the
political policies of those supporting the bill and the views of those opposing it.
- ^ the most recent example of politics impacting the constitution is Brexit.
- Politics plays a crucial role in the broader constitution within the legal framework set out by
legal sources.
Constitutionalism and accountability
- The notion of governments operating and acting in adherence to and in accordance with the
constitutional principles of the state.
- If a government acts in contravention to the rules of the constitution, then it is said to be
acting ‘unconstitutionally’.
- Lord Steyn – “a political theory as to the type of institutional arrangements that are
necessary…the exercise of government power must be controlled…not be destructive to the
very values which it was intended to promote” 1
- This is reflected in practical terms by the mechanisms (both political and legal) in place to
ensure the legitimacy of government acts and government accountability.
- ^ the government can be held accountable in the courts (legal) and through the democratic
process (political) e.g. elections and question time in the House of Commons – the
conventions of ministerial responsibility also ensure accountability.
1
Lord Steyn, ‘The weakest and least dangerous department of government’, (1997) Public Law 84, 87, cited in
Dawn Oliver, Constitutional Reform in the UK (OUP 2003), 26.
What is a constitution?
“the backcloth of government and its powers…rules, written or unwritten…identifies the principal
institutions of the state, their powers and relationships with other state institutions and the
relationship between government and citizen” – Hilaire Barnett.
- It is a collection of rules that identify, regulate, and govern the manner in which the state’s
institutions operate and relate to one another.
- The constitution is regarded as the highest authority of law in a system of government –
Thomas Paine – “a constitution is a thing antecedent to government”.
- It makes provisions for individual rights, legitimizes, and sets out the scope of executive
power, and provides the foundation of the relationships between the institutions and
citizens.
- Paine implies that government institutions are bound by these rights and the limits of the
executive power.
- Paine also emphasises that democracy should be at the heart of the system – prevents the
abuse of power and infringement of rights.
The features of the UK constitution - uncodified
- It is uncodified – there are only 3 countries with an uncodified constitution. – it is set out
across various sources which are legal and non-legal, written, unwritten, and introduced at
various points in time.
- ^ made up of acts of parliament, case law, and constitutional conventions.
- R (Miller) v Secretary of State for Exiting the European Union – Supreme Court said “the
United Kingdom does not have a constitution in the sense of a single coherent code of
fundamental law which prevails over all other sources of law…have developed over time
in a pragmatic…principled way, through a combination of statutes, events, conventions,
academic writings and judicial decisions’.
- Its uncodified nature means that those laws relating to constitutional matters are part of the
ordinary law rather than of a special status and are subordinate to the sovereign authority
of the legislature.
Amending the constitution
- Because it is uncodified, the constitution can be amended with relative ease – it is
predominantly contained within the ordinary law and thus can be adjusted and amended
relatively easily through the ordinary process.
- The law is passed through a simple majority in both Houses of Parliament followed by royal
assent from the monarch.
- E.g. the Human Rights Act 1998 or the Constitutional Reform Act 2005 can be repealed just
as easily as any other Act of Parliament despite being central to the constitutional system of
the UK.
- “constitutions may be classified according to the method by which they may be amended…
flexible…rigid” – KC Wheare, Modern Constitutions (OUP 1966) 15-16
- The general argument is that uncodified constitutions are more flexible than codified –
comparison between the US and UK constitutions.
- ^ this flexibility relies on the fact that there is no distinction between laws pertaining to the
constitution and other laws – legally they are of the same force.
, - “flexibility to allow adaptation to…changing circumstance of society…carries with it a
danger that noting is sacred…secure from the priorities of the current government” –
Elizabeth Wicks, The Evolution of a Constitution…
- Barendt argues that the distinction between flexible and rigid constitutions is ‘rather
unhelpful’ for two reasons:
1. The group of flexible constitutions is too narrow based on this definition and this
category is not widely recognised – would only consist of three countries.
2. The constitutions termed rigid are so diverse – it is misleading to suggest that they are
impossible or difficult to amend as they differ considerably from one another.
Role of the Supreme Court (UK vs US)
- In the codified US, the Supreme Court’s role is to protect and uphold the provisions of the
constitution and is its ultimate interpreter.
- ^ has the power to scrutinise legislative and executive action in line with the constitution
and set aside primary legislation/ executive decisions.
- In the uncodified UK, in line with parliamentary sovereignty, the UKSC has no special powers
to question the sovereign parliament and its scope and ability to question the executive is
limited by the concept of justiciability.
- ^ the UKSC is simply the highest court of appeal atop the domestic judicial hierarchy – it
replaced the Appellate Committee of the House of Lords.
The UK Constitution as a legal and political constitution
- Legal constitution – legal principles, statutory provisions, and common law rules that make
up the substance of the constitution – enforced by various institutions of state (parliament,
executive, and courts).
- Political constitution – the substance and content of legislation is underpinned by the
political policies of those supporting the bill and the views of those opposing it.
- ^ the most recent example of politics impacting the constitution is Brexit.
- Politics plays a crucial role in the broader constitution within the legal framework set out by
legal sources.
Constitutionalism and accountability
- The notion of governments operating and acting in adherence to and in accordance with the
constitutional principles of the state.
- If a government acts in contravention to the rules of the constitution, then it is said to be
acting ‘unconstitutionally’.
- Lord Steyn – “a political theory as to the type of institutional arrangements that are
necessary…the exercise of government power must be controlled…not be destructive to the
very values which it was intended to promote” 1
- This is reflected in practical terms by the mechanisms (both political and legal) in place to
ensure the legitimacy of government acts and government accountability.
- ^ the government can be held accountable in the courts (legal) and through the democratic
process (political) e.g. elections and question time in the House of Commons – the
conventions of ministerial responsibility also ensure accountability.
1
Lord Steyn, ‘The weakest and least dangerous department of government’, (1997) Public Law 84, 87, cited in
Dawn Oliver, Constitutional Reform in the UK (OUP 2003), 26.
