Constitutional Law Master Document
Topic One: Themes, Sources and Principles
Sub-Topic One: Constitutions
(i) The absence of codification
A constitution is defined generally as having a special legal status setting out the framework
and principal functions of government. On this basis, the UK would not have a constitution.
The HOL stated in 2001 that the constitution is ‘the set of laws, rules and practices that
create the basic institutions of the state’.
The making of a constitution generally follows a constitutional moment, for example in the
1990s after the collapse of Communism in Eastern and Central Europe. There has never
been a constitution in the UK except under Cromwell’s ‘Instrument of Government’ (1653-
1660).
Many events have occurred which led to pragmatic political action as opposed to
constitutional reconstruction:
• HOC reform in 1832
• Crisis over HOL led to the Parliament Act 1911
• The union of England and Scotland in 1707
• The union of GB and Ireland in 1800
• Abdication crisis affecting the monarchy in 1936
• Coalition of 2020 did not lead to as many reforms as projected
A referendum was not needed to trigger article 50. However, under the Northern Ireland
Act 1998, Northern Ireland cannot lose its status within the UK without a ‘poll’.
A constitution won’t be complete if there is too much disagreement or consensus: self-
regulation is important e.g. Thailand where constitutions are constantly being replaced
which gives rise to instability.
Functions of a constitution:
1. Allocation and limitation of power
Marbury v Madison 5 US 137 (1803)
Congress does not have the power to pass laws that override the Constitution, such as by
expanding the scope of the Supreme Court’s original jurisdiction.
Roe v Wade 410 US 113 (1973)
,In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s
identity) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas,
where she resided, challenging a Texas law making abortion illegal except by a doctor’s
orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were
unconstitutionally vague and abridged her right of personal privacy. It was held that third-
trimester abortions might be proscribed completely by state legislatures, whilst second-
trimester abortion might only be restricted for reasons of maternal health. The violation of
the right to privacy was acknowledged but balanced against the right to life.
2. Accountability
3. Legitimacy:
Supplying the foundation for a legitimate, consensual system of government.
Plessy v Ferguson 163 US 537 (1896)
The Court ruled that racial segregation laws did not violate the U.S. Constitution as long as
the facilities for each race were equal in quality, a doctrine that came to be known as
‘separate but equal’.
Brown v Board of Education of Topeka 347 US 483 (1954)
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits states from segregating public school students on the basis of race.
This marked a reversal of the ‘separate but equal’ doctrine from Plessy.
4. Permanency
5. Educational value
6. Symbolic expression of values and an entrenchment of core values
District of Columbia v Heller 128 S Ct 2783 (2008)
A landmark decision of the US Supreme Court ruling that the Second Amendment to the
United States Constitution protects an individual's right to keep and bear arms,
unconnected with service in a militia, for traditionally lawful purposes, such as self-defence
within the home, and that the District of Columbia's handgun ban and requirement that
lawfully owned rifles and shotguns be kept ‘unloaded and disassembled or bound by a
trigger lock’ violated this guarantee.
It also stated that the right to bear arms is not unlimited and that gun ownership would
continue to be regulated.
,It was the first Supreme Court case to decide whether the Second Amendment protects an
individual right to keep and bear arms for self-defence or if the right was intended for state
militias.
The constitution is flexible, which the HOL commented on in a committee in 2011, warning
of the dangers of fast-track constitutional legislation. The approach to the constitution is ad-
hoc and incremental. No legislation is superior to another piece of legislation. There is no
hierarchy in law.
For codification Against codification
It would provide clear rules, with less It would be too difficult to change and may
confusion as to what the constitution become outdated
means It would give unelected judges to power to
It would formally limit the powers of prevent elected government from carrying
government, addressing the problem of out its pledges
elective dictatorship Uncodified constitutions are organic and
It could be policed and protected by judges, naturally evolving, codified constitutions
who are politically independent and neutral are more ‘legalistic’ and arbitrarily
It would allow for a stronger protection of implemented
rights, as rights would be fully entrenched A codified constitution may be
and more difficult to set aside unnecessary- government power could be
It would strengthen citizenship, giving checked by strengthening the existing
people a clear idea of not only their rights systems
but the purpose and workings of the It may be harder for a government to get
political system. It could also be a source of things done and fulfil its manifesto
unity for the nation promises
It would bring the UK into line with other
modern democracies
For an entrenched bill of rights Against an entrenched bill of rights
It would make the government more Judges become more powerful and
subject to the law, as rights will be ‘higher’ influential, meaning they end up making
than other laws. This will make the law- and they are unelected and socially
government more responsible and unrepresentative
accountable Judges may become politicised and lose
Civil liberties would be better guaranteed their independence, as they are more
and protected- they wouldn’t be set aside involved in the policy process
under any circumstance Raising awareness of rights may come at
It would make people more aware of their the expense of awareness of
rights, so has educational benefits responsibilities. Individual rights may
There is already an agreement on rights supersede the rights of the community
(through the European Convention and Rights are artificial constructs which may be
Human Rights Act), so implementing a fully difficult to implement in ‘the real world’
entrenched bill of rights would not be
controversial
(ii) Multi-layered
, 1. International institutions (e.g. the European Union — for now; the Council of Europe)
2. UK institutions (central government and its associated agencies)
The UK is a centralised state – local government only has powers given to it by Parliament.
3. Devolved institutions (in Scotland, Wales and Northern Ireland)
4. Local institutions (which, in some places, themselves consist of two tiers, being divided
between county and town/city councils)
Sub-Topic Two: Parliamentary Sovereignty
(i) Case law
R (Jackson) v Attorney-General [2005] UKHL 56
Appellants (J) appealed against the decision that the Hunting Act 2004 had been validly
enacted pursuant to the provisions of the Parliament Act 1911 and the Parliament Act 1949.
The Parliament Act 1911 s.2(1) had restricted the ability of the HOL to prevent the
enactment of legislation by providing that after a period of two years had elapsed in the
circumstances described in that section, a Bill could become an Act of Parliament without
the consent of the HOL.
The 1949 Act, enacted in reliance on s.2(1) of the 1911 Act, had amended the 1911 Act by
reducing the two-year period to one year.
J had an interest in fox hunting and challenged the validity of the 2004 Act that banned the
hunting of foxes with dogs. J sought declarations that the 1949 Act was not an Act of
Parliament and was consequently of no legal effect, and that accordingly the 2004 Act was
not an Act of Parliament and was of no legal effect.
The 2004 Act had been opposed by the HOL.
J submitted that:
1. Legislation made under the 1911 Act was delegated and subordinate, not primary
2. The legislative power conferred by s.2(1) of the 1911 Act was not unlimited in scope
3. The amendments made by the 1949 Act were not authorised and that Act was invalid
Held, dismissing the appeal, with a leading judgment from Lord Bingham, that:
Topic One: Themes, Sources and Principles
Sub-Topic One: Constitutions
(i) The absence of codification
A constitution is defined generally as having a special legal status setting out the framework
and principal functions of government. On this basis, the UK would not have a constitution.
The HOL stated in 2001 that the constitution is ‘the set of laws, rules and practices that
create the basic institutions of the state’.
The making of a constitution generally follows a constitutional moment, for example in the
1990s after the collapse of Communism in Eastern and Central Europe. There has never
been a constitution in the UK except under Cromwell’s ‘Instrument of Government’ (1653-
1660).
Many events have occurred which led to pragmatic political action as opposed to
constitutional reconstruction:
• HOC reform in 1832
• Crisis over HOL led to the Parliament Act 1911
• The union of England and Scotland in 1707
• The union of GB and Ireland in 1800
• Abdication crisis affecting the monarchy in 1936
• Coalition of 2020 did not lead to as many reforms as projected
A referendum was not needed to trigger article 50. However, under the Northern Ireland
Act 1998, Northern Ireland cannot lose its status within the UK without a ‘poll’.
A constitution won’t be complete if there is too much disagreement or consensus: self-
regulation is important e.g. Thailand where constitutions are constantly being replaced
which gives rise to instability.
Functions of a constitution:
1. Allocation and limitation of power
Marbury v Madison 5 US 137 (1803)
Congress does not have the power to pass laws that override the Constitution, such as by
expanding the scope of the Supreme Court’s original jurisdiction.
Roe v Wade 410 US 113 (1973)
,In 1970, Jane Roe (a fictional name used in court documents to protect the plaintiff’s
identity) filed a lawsuit against Henry Wade, the district attorney of Dallas County, Texas,
where she resided, challenging a Texas law making abortion illegal except by a doctor’s
orders to save a woman’s life. In her lawsuit, Roe alleged that the state laws were
unconstitutionally vague and abridged her right of personal privacy. It was held that third-
trimester abortions might be proscribed completely by state legislatures, whilst second-
trimester abortion might only be restricted for reasons of maternal health. The violation of
the right to privacy was acknowledged but balanced against the right to life.
2. Accountability
3. Legitimacy:
Supplying the foundation for a legitimate, consensual system of government.
Plessy v Ferguson 163 US 537 (1896)
The Court ruled that racial segregation laws did not violate the U.S. Constitution as long as
the facilities for each race were equal in quality, a doctrine that came to be known as
‘separate but equal’.
Brown v Board of Education of Topeka 347 US 483 (1954)
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits states from segregating public school students on the basis of race.
This marked a reversal of the ‘separate but equal’ doctrine from Plessy.
4. Permanency
5. Educational value
6. Symbolic expression of values and an entrenchment of core values
District of Columbia v Heller 128 S Ct 2783 (2008)
A landmark decision of the US Supreme Court ruling that the Second Amendment to the
United States Constitution protects an individual's right to keep and bear arms,
unconnected with service in a militia, for traditionally lawful purposes, such as self-defence
within the home, and that the District of Columbia's handgun ban and requirement that
lawfully owned rifles and shotguns be kept ‘unloaded and disassembled or bound by a
trigger lock’ violated this guarantee.
It also stated that the right to bear arms is not unlimited and that gun ownership would
continue to be regulated.
,It was the first Supreme Court case to decide whether the Second Amendment protects an
individual right to keep and bear arms for self-defence or if the right was intended for state
militias.
The constitution is flexible, which the HOL commented on in a committee in 2011, warning
of the dangers of fast-track constitutional legislation. The approach to the constitution is ad-
hoc and incremental. No legislation is superior to another piece of legislation. There is no
hierarchy in law.
For codification Against codification
It would provide clear rules, with less It would be too difficult to change and may
confusion as to what the constitution become outdated
means It would give unelected judges to power to
It would formally limit the powers of prevent elected government from carrying
government, addressing the problem of out its pledges
elective dictatorship Uncodified constitutions are organic and
It could be policed and protected by judges, naturally evolving, codified constitutions
who are politically independent and neutral are more ‘legalistic’ and arbitrarily
It would allow for a stronger protection of implemented
rights, as rights would be fully entrenched A codified constitution may be
and more difficult to set aside unnecessary- government power could be
It would strengthen citizenship, giving checked by strengthening the existing
people a clear idea of not only their rights systems
but the purpose and workings of the It may be harder for a government to get
political system. It could also be a source of things done and fulfil its manifesto
unity for the nation promises
It would bring the UK into line with other
modern democracies
For an entrenched bill of rights Against an entrenched bill of rights
It would make the government more Judges become more powerful and
subject to the law, as rights will be ‘higher’ influential, meaning they end up making
than other laws. This will make the law- and they are unelected and socially
government more responsible and unrepresentative
accountable Judges may become politicised and lose
Civil liberties would be better guaranteed their independence, as they are more
and protected- they wouldn’t be set aside involved in the policy process
under any circumstance Raising awareness of rights may come at
It would make people more aware of their the expense of awareness of
rights, so has educational benefits responsibilities. Individual rights may
There is already an agreement on rights supersede the rights of the community
(through the European Convention and Rights are artificial constructs which may be
Human Rights Act), so implementing a fully difficult to implement in ‘the real world’
entrenched bill of rights would not be
controversial
(ii) Multi-layered
, 1. International institutions (e.g. the European Union — for now; the Council of Europe)
2. UK institutions (central government and its associated agencies)
The UK is a centralised state – local government only has powers given to it by Parliament.
3. Devolved institutions (in Scotland, Wales and Northern Ireland)
4. Local institutions (which, in some places, themselves consist of two tiers, being divided
between county and town/city councils)
Sub-Topic Two: Parliamentary Sovereignty
(i) Case law
R (Jackson) v Attorney-General [2005] UKHL 56
Appellants (J) appealed against the decision that the Hunting Act 2004 had been validly
enacted pursuant to the provisions of the Parliament Act 1911 and the Parliament Act 1949.
The Parliament Act 1911 s.2(1) had restricted the ability of the HOL to prevent the
enactment of legislation by providing that after a period of two years had elapsed in the
circumstances described in that section, a Bill could become an Act of Parliament without
the consent of the HOL.
The 1949 Act, enacted in reliance on s.2(1) of the 1911 Act, had amended the 1911 Act by
reducing the two-year period to one year.
J had an interest in fox hunting and challenged the validity of the 2004 Act that banned the
hunting of foxes with dogs. J sought declarations that the 1949 Act was not an Act of
Parliament and was consequently of no legal effect, and that accordingly the 2004 Act was
not an Act of Parliament and was of no legal effect.
The 2004 Act had been opposed by the HOL.
J submitted that:
1. Legislation made under the 1911 Act was delegated and subordinate, not primary
2. The legislative power conferred by s.2(1) of the 1911 Act was not unlimited in scope
3. The amendments made by the 1949 Act were not authorised and that Act was invalid
Held, dismissing the appeal, with a leading judgment from Lord Bingham, that:
