Nature of the British Constitution
- Uncodified - no single document
- Quasifederal - unitary in Westminster, but devolution
- Flexible - can be altered by the law-making process
Sources of the British Constitution
- Statute law - made by Parliament, sovereign, e.g., the Human Rights Act 1998 or the
Government of Wales Act 1998
- Common law - created by judicial rulings, e.g., murder or RvR 1991 case (rape is
rape in marriage)
- Conventions - customs or traditions that have endured, e.g., royal assent or royal
prerogative, or Salisbury Addison (House of Lords should not oppose a second or
third reading of any government legislation promised in its election manifesto)
- Authoritative works - persuasive authority, e.g., Walter Bagehot ‘The English
Constitution’ 1867 (distinguished the dignified and the efficient parts of the
constitution or monarchy and Lords and the cabinet and Commons) or AV Dicey ‘An
Introduction to the Study of the Law of the Constitution ' 1885 (defines Parliamentary
sovereignty and the rule of law)
Principles of the Constitution
- Parliamentary sovereignty - absolute and unlimited legal authority of Parliament, but
it does have constraints
- Rule of law - law applies to all conduct or behaviour
- Parliamentary government - fusion between the legislative and executive branches,
the government governs through Parliament
- Constitutional monarchy - monarchy is to promote popular allegiance and serve as a
symbol for political unity
Is the UK constitution fit for purpose?
- Yes, flexible - e.g., devolution to Scotland and Wales, the Government of Wales Act
1998
- No, lack of centralisation and codification, but mitigated by Parliamentary sovereignty
and rule of law (AV Dicey)
- No, weak protection of rights due to organic nature, but mitigated by supranational
organisation and rule of law; in theory, they can’t e.g. Human Rights Act 1998
Should the UK adopt a codified constitution?
- Yes, clear rules
- No, rigidity
- No, political bias
Role of the Supreme Court
- Constitutional Reform Act 2005 introduced the creation of the Supreme Court
- 12 Supreme Court replaced the Law Lords as the highest court in the land
- Hears appeals on arguably points of law of general public importance, e.g., R v
Attorney General 2005 (whether the use of the Parliament Act 1911 was valid to pass
the Hunting Act 2004)
, - Acts as the final court of appeal for all UK civil cases and criminal cases from
England, Wales, and Northern Ireland
- Judicial neutrality - absence of any form of partisanship or commitment, a refusal to
take sides so that decisions that are taken are objective
- Judicial independence - the actions and decisions of judges should not be influenced
by pressure from other branches of government
- JAC - created to select candidates free from political interference while encouraging
diversity in the range of people available for selection
Power of the Supreme Court
- Judicial review - allowing the court to rule on whether a decision or action taken by a
public authority, including a minister, is ultra vires - e.g., in 2010, the court ruled that
the government had not acted lawfully when instituting that convicted sex offenders
should be registered with the police for life, which breached the offenders' human
rights)
- Rules on constitutional matters - e.g., the government proposed to use its prerogative
powers to withdraw from the EU, an issue was raised on whether the government
could use its powers to trigger Article 50 without prior authorisation by an Act of
Parliament
Is the Supreme Court independent and neutral?
- No, the biggest threat to judicial independence was the entanglement with the
executive and legislature
- Yes, mitigated by the CRA in 2005
- No, concern about judicial independence stems from a growing willingness of
ministers to publicly criticise the courts
How independent is the UK Supreme Court
- It is, judges sign up to the principle of impartiality and acknowledge they are primarily
accountable to the law (expected to refrain from activities, live-streamed)
- It isn't, increasing attacks by the media on the character of the judges rather than
their decision, e.g., Daily Mail ‘enemies of the people’ about Brexit
- It isn't, all upperclass, Oxford-educated, middle class, e.g., in 2020, only two female
judges
Does the Supreme Court have too much power?
- Yes, the power to declare acts of Parliament as incompatible with the Human Rights
Act
- Yes, a large increase in the number of judicial review cases limiting the power of
democratically elected governments
Debates about a legal jurisdiction for Wales
- Yes, Mr Antoniw said that the increasing volume of Welsh-only laws meant that the
creation of a distinct legal jurisdiction for Wales was inevitable, and therefore it
makes sense to start working on a separate system now
- Yes, legal clarity and coherence
- No, complexity, cost, legal fragmentation and confusion
, Key constitutional statutes and treaties governing the UK's relationship with international
bodies
- EU - The UK eventually joined the European Community (later to become the EU) in
1972 after the Treaty of Accession. Many in the UK became increasingly concerned
with the legislative authority of the EU having primacy over UK Law
- NATO - North Atlantic Treaty 1949, The organisation was set up with 11 other states
in Western Europe as a response to the growing threat of communism. It promotes
the Atlantic Charter principles of freedom, security and prosperity through democracy,
individual freedom and the rule of law. It is a military support organisation for member
states
- UN - United Nations Act 1946, The UK was a founding member of the UN in 1945. It
was designed to ensure that world peace was maintained and diplomacy was chosen
over war to avoid any further conflicts across the world
The UK and a changing world, e.g., Brexit
- After 52% of voters requested to leave the European Union (EU) in a referendum
held in 2016, the UK government invoked Article 50 of the Lisbon Treaty, which sets
out the method that a country must use to leave the EU
The core executive
- The job is to execute the laws of the legislature
- Prime Minister - appointed by the monarch (convention) and head of the executive
- Cabinet - senior people in the executive responsible for running government
departments
- Junior ministers - members who assist the senior ministers
- The civil service - permanent officials who carry out the day-to-day running of the
government departments, their job is to advise the ministers and enact policy
decisions, expected to act in a neutral fashion
- All members must be members of Parliament as they make big political decisions
and must answer to Parliament as representatives
Role of the executive
- Proposing primary legislation, first reading in Parliament
- Proposing a budget, November 2025 (doesn't raise income tax, expected to raise
taxes)
- Making policy decisions within the laws and the budget, how they are enacted,
secondary legislation (parts are amended), delegated legislation (grants the
executive the power to make decisions without getting prior approval from
Parliament)
Sources of Prime Ministerial power and authority
- Traditional authority - prerogative power, delegated to the Prime Minister
- Party - always the leader of the largest party in the House of Commons, can take the
lead on policy making
- Parliament - recognises the authority of the Prime Minister, and the Prime Minister
gains significant power over Parliament
- Patronage - power an individual may enjoy to make important appointments to public
offices
- Uncodified - no single document
- Quasifederal - unitary in Westminster, but devolution
- Flexible - can be altered by the law-making process
Sources of the British Constitution
- Statute law - made by Parliament, sovereign, e.g., the Human Rights Act 1998 or the
Government of Wales Act 1998
- Common law - created by judicial rulings, e.g., murder or RvR 1991 case (rape is
rape in marriage)
- Conventions - customs or traditions that have endured, e.g., royal assent or royal
prerogative, or Salisbury Addison (House of Lords should not oppose a second or
third reading of any government legislation promised in its election manifesto)
- Authoritative works - persuasive authority, e.g., Walter Bagehot ‘The English
Constitution’ 1867 (distinguished the dignified and the efficient parts of the
constitution or monarchy and Lords and the cabinet and Commons) or AV Dicey ‘An
Introduction to the Study of the Law of the Constitution ' 1885 (defines Parliamentary
sovereignty and the rule of law)
Principles of the Constitution
- Parliamentary sovereignty - absolute and unlimited legal authority of Parliament, but
it does have constraints
- Rule of law - law applies to all conduct or behaviour
- Parliamentary government - fusion between the legislative and executive branches,
the government governs through Parliament
- Constitutional monarchy - monarchy is to promote popular allegiance and serve as a
symbol for political unity
Is the UK constitution fit for purpose?
- Yes, flexible - e.g., devolution to Scotland and Wales, the Government of Wales Act
1998
- No, lack of centralisation and codification, but mitigated by Parliamentary sovereignty
and rule of law (AV Dicey)
- No, weak protection of rights due to organic nature, but mitigated by supranational
organisation and rule of law; in theory, they can’t e.g. Human Rights Act 1998
Should the UK adopt a codified constitution?
- Yes, clear rules
- No, rigidity
- No, political bias
Role of the Supreme Court
- Constitutional Reform Act 2005 introduced the creation of the Supreme Court
- 12 Supreme Court replaced the Law Lords as the highest court in the land
- Hears appeals on arguably points of law of general public importance, e.g., R v
Attorney General 2005 (whether the use of the Parliament Act 1911 was valid to pass
the Hunting Act 2004)
, - Acts as the final court of appeal for all UK civil cases and criminal cases from
England, Wales, and Northern Ireland
- Judicial neutrality - absence of any form of partisanship or commitment, a refusal to
take sides so that decisions that are taken are objective
- Judicial independence - the actions and decisions of judges should not be influenced
by pressure from other branches of government
- JAC - created to select candidates free from political interference while encouraging
diversity in the range of people available for selection
Power of the Supreme Court
- Judicial review - allowing the court to rule on whether a decision or action taken by a
public authority, including a minister, is ultra vires - e.g., in 2010, the court ruled that
the government had not acted lawfully when instituting that convicted sex offenders
should be registered with the police for life, which breached the offenders' human
rights)
- Rules on constitutional matters - e.g., the government proposed to use its prerogative
powers to withdraw from the EU, an issue was raised on whether the government
could use its powers to trigger Article 50 without prior authorisation by an Act of
Parliament
Is the Supreme Court independent and neutral?
- No, the biggest threat to judicial independence was the entanglement with the
executive and legislature
- Yes, mitigated by the CRA in 2005
- No, concern about judicial independence stems from a growing willingness of
ministers to publicly criticise the courts
How independent is the UK Supreme Court
- It is, judges sign up to the principle of impartiality and acknowledge they are primarily
accountable to the law (expected to refrain from activities, live-streamed)
- It isn't, increasing attacks by the media on the character of the judges rather than
their decision, e.g., Daily Mail ‘enemies of the people’ about Brexit
- It isn't, all upperclass, Oxford-educated, middle class, e.g., in 2020, only two female
judges
Does the Supreme Court have too much power?
- Yes, the power to declare acts of Parliament as incompatible with the Human Rights
Act
- Yes, a large increase in the number of judicial review cases limiting the power of
democratically elected governments
Debates about a legal jurisdiction for Wales
- Yes, Mr Antoniw said that the increasing volume of Welsh-only laws meant that the
creation of a distinct legal jurisdiction for Wales was inevitable, and therefore it
makes sense to start working on a separate system now
- Yes, legal clarity and coherence
- No, complexity, cost, legal fragmentation and confusion
, Key constitutional statutes and treaties governing the UK's relationship with international
bodies
- EU - The UK eventually joined the European Community (later to become the EU) in
1972 after the Treaty of Accession. Many in the UK became increasingly concerned
with the legislative authority of the EU having primacy over UK Law
- NATO - North Atlantic Treaty 1949, The organisation was set up with 11 other states
in Western Europe as a response to the growing threat of communism. It promotes
the Atlantic Charter principles of freedom, security and prosperity through democracy,
individual freedom and the rule of law. It is a military support organisation for member
states
- UN - United Nations Act 1946, The UK was a founding member of the UN in 1945. It
was designed to ensure that world peace was maintained and diplomacy was chosen
over war to avoid any further conflicts across the world
The UK and a changing world, e.g., Brexit
- After 52% of voters requested to leave the European Union (EU) in a referendum
held in 2016, the UK government invoked Article 50 of the Lisbon Treaty, which sets
out the method that a country must use to leave the EU
The core executive
- The job is to execute the laws of the legislature
- Prime Minister - appointed by the monarch (convention) and head of the executive
- Cabinet - senior people in the executive responsible for running government
departments
- Junior ministers - members who assist the senior ministers
- The civil service - permanent officials who carry out the day-to-day running of the
government departments, their job is to advise the ministers and enact policy
decisions, expected to act in a neutral fashion
- All members must be members of Parliament as they make big political decisions
and must answer to Parliament as representatives
Role of the executive
- Proposing primary legislation, first reading in Parliament
- Proposing a budget, November 2025 (doesn't raise income tax, expected to raise
taxes)
- Making policy decisions within the laws and the budget, how they are enacted,
secondary legislation (parts are amended), delegated legislation (grants the
executive the power to make decisions without getting prior approval from
Parliament)
Sources of Prime Ministerial power and authority
- Traditional authority - prerogative power, delegated to the Prime Minister
- Party - always the leader of the largest party in the House of Commons, can take the
lead on policy making
- Parliament - recognises the authority of the Prime Minister, and the Prime Minister
gains significant power over Parliament
- Patronage - power an individual may enjoy to make important appointments to public
offices
