CONSTITUTIONAL AND ADMINISTRATIVE LAW NOTES
Lecture 1: What is a constitution? // Key features of the UK Constitution
What is a constitution?
Constitution set out the fundamental rules and law for the state.
They can take many different forms.
Constitution of the United Kingdom of Great Britain and Northern Ireland.
It is composed by three different nations and one region.
England.
Scotland.
Wales.
Northern Ireland.
England has a lot more of power compared with the other states of the UK for that.
It is by far the biggest state of the United Kingdom.
o England: 56.5 million (84.3%).
o Wales: 3.2 million (4.7%).
o N. Ireland: 1.9 million (2.8%).
o Scotland: 5.4 million (8.2%).
It controls a lot of what goes in the UK constitution because of that.
Definitions of Constitution
Peter Hanks: “Constitution is a set of rules set of rules which define the institutions of
government, assign to them areas of operation, set limits to their functions, establish
their inter-relationships, and prescribe the relative rights and obligations of other,
non-governmental, interests. This dual character--political and legal--is not unique to
constitutional law … But constitutional law's combination of these elements is more
overt, more conscious, and more central--indeed, symbiotic: the very reason for the
development and existence of these rules is to define, organise, contain and
enhance the exercise of political power; and the content of these rules responds to
historical, social, economic and political developments”.
He points out the duality character of the constitution (political and legal).
Mark Elliot: “a set of arrangements that enjoys popular legitimacy, enabling people to
be governed in a way they regard as acceptable. This can be achieved by having
debate about what the constitution should contain and then holding a referendum on
its contents. Constitutions reflect a consensus on how the country should be run”.
David Feldman: “The Constitution should allocate power in a manner that is morally
acceptable (reflects fundamental rights) to those over whom it is exercised.
,Constitutional law is ‘expected to confer authority and legitimacy on the process of
governing’. It should limit the capacity to use its powers in arbitrary, anti-social and
unaccountable ways. Constitutions subject states to moral values and principles,
thereby converting brute force into legitimate authority”.
What is a Constitution?
Accountability of Government.
Permanency.
Morally acceptable to citizens.
Popular support of citizens.
Establish rights.
Define institutions and functions.
It should set out the rules which define the institutions of government.
Three central institutions of government:
o The executive.
o The legislature.
o The judiciary.
It should limit the functions of the institutions of government.
o What are they all actually able to do in practice.
It should reflect a consensus about how a country should be run.
It should enjoy popular support among the people.
This is normally achieved by voting on the contents of the constitutions.
o It’s a way to modify things that people believe that are wrong.
How could the status quo be changed if these situations don’t happen?
o Ex: Brexit referendum.
o Ex: Scottish independence referendum.
Allocate power in a way that is morally acceptable to the vast majority of the people.
There is always disagreements about this point.
o Entwined with the religious beliefs of a number of people.
It used to mean to be acceptable to the majority of the people within the
stage.
Establish lines between governmental power and individual freedom.
, Often achieved by put fundamental rights within in a constitution.
It protects us from arbitrary interferences from the states.
o Arbitrary detention.
o Arbitrary depriving people of their lives.
o Breaking up protests.
Order to establish lines between those two forces.
Establish rights and obligations of non-governmental parties.
Ex: as a citizen, there is an obligation of follow the laws of the states.
Ex: in return, the rights of protection of the state is guaranteed.
Accountability of government within constitutional framework.
Mandating periodic elections.
Remove politicians from office.
Judicial review of governmental action.
Provide permanency.
The constitution SHOULD NOT change week to week or month to month.
Ensure that basic rule on how the country operates don’t change too
regularly.
UK CONSTITUTION
Uncodified constitution
It is not an unwritten constitution, but an uncodified one.
It has several written sources contained.
It is not gathered together and written down in a single document.
Britain remains one of the three democracies in the world which are not
endowed with a codified constitution.
UK Constitutional law has a range of different sources.
Statutes.
Constitutional Conventions.
Court Judgements.
Common Laws.
Flat Constitution
, It is on the same level at any other law of the country.
Instead of Constitutional Law being higher than any other regulation.
There is two things that illustrate this situation really well.
Flat: the constitution lacks a hierarchy.
Amendment Procedure.
Review Procedure.
Amendment Procedure
UK Constitutional Law doesn’t require a special procedure to change articles.
It can be changed by a normal act of parliament passed by legislature.
Most constitutions require singularities to be changed.
Art 47 Irish Constitution: referendum to amend the constitution.
o The support of at least 50% of the people that are polled.
Art 5 USA Constitution - 2/3 both houses of the legislature (congress and
senate) + support of 3/4 of the State legislatures.
o There is a very high bar to change the Constitution.
This started to cause problems in different ways.
Constitutional Law should be permanent to secure stability.
o UK Constitution: arguably too flexible. So easy to change important
laws.
Repealing Human Rights Act 1998.
o Very important laws could be changed by simple majority of the
Parliament in the UK.
But not too much as not to be able to respond to social issues.
o US Constitution: arguably too rigid. It’s difficult to change old
provisions.
Second Amendment right to bear arms.
It used to be a good idea in the Independence Era but not here.
o It is so high and request too much to be changed.
Flat Constitutions has benefits and it has drawbacks.
Lord Woolf: “Our constitution has always been capable of evolving as the
needs of society change. The evolution can be incremental in a way which
would be difficult if we had a written constitution. But flexibility comes at a
price. We have never had the protection that a written constitution can
provide for institutions that have a fundamental role to play in society”.
Flexibility could be beneficial is responsive to how the society changes.
Lecture 1: What is a constitution? // Key features of the UK Constitution
What is a constitution?
Constitution set out the fundamental rules and law for the state.
They can take many different forms.
Constitution of the United Kingdom of Great Britain and Northern Ireland.
It is composed by three different nations and one region.
England.
Scotland.
Wales.
Northern Ireland.
England has a lot more of power compared with the other states of the UK for that.
It is by far the biggest state of the United Kingdom.
o England: 56.5 million (84.3%).
o Wales: 3.2 million (4.7%).
o N. Ireland: 1.9 million (2.8%).
o Scotland: 5.4 million (8.2%).
It controls a lot of what goes in the UK constitution because of that.
Definitions of Constitution
Peter Hanks: “Constitution is a set of rules set of rules which define the institutions of
government, assign to them areas of operation, set limits to their functions, establish
their inter-relationships, and prescribe the relative rights and obligations of other,
non-governmental, interests. This dual character--political and legal--is not unique to
constitutional law … But constitutional law's combination of these elements is more
overt, more conscious, and more central--indeed, symbiotic: the very reason for the
development and existence of these rules is to define, organise, contain and
enhance the exercise of political power; and the content of these rules responds to
historical, social, economic and political developments”.
He points out the duality character of the constitution (political and legal).
Mark Elliot: “a set of arrangements that enjoys popular legitimacy, enabling people to
be governed in a way they regard as acceptable. This can be achieved by having
debate about what the constitution should contain and then holding a referendum on
its contents. Constitutions reflect a consensus on how the country should be run”.
David Feldman: “The Constitution should allocate power in a manner that is morally
acceptable (reflects fundamental rights) to those over whom it is exercised.
,Constitutional law is ‘expected to confer authority and legitimacy on the process of
governing’. It should limit the capacity to use its powers in arbitrary, anti-social and
unaccountable ways. Constitutions subject states to moral values and principles,
thereby converting brute force into legitimate authority”.
What is a Constitution?
Accountability of Government.
Permanency.
Morally acceptable to citizens.
Popular support of citizens.
Establish rights.
Define institutions and functions.
It should set out the rules which define the institutions of government.
Three central institutions of government:
o The executive.
o The legislature.
o The judiciary.
It should limit the functions of the institutions of government.
o What are they all actually able to do in practice.
It should reflect a consensus about how a country should be run.
It should enjoy popular support among the people.
This is normally achieved by voting on the contents of the constitutions.
o It’s a way to modify things that people believe that are wrong.
How could the status quo be changed if these situations don’t happen?
o Ex: Brexit referendum.
o Ex: Scottish independence referendum.
Allocate power in a way that is morally acceptable to the vast majority of the people.
There is always disagreements about this point.
o Entwined with the religious beliefs of a number of people.
It used to mean to be acceptable to the majority of the people within the
stage.
Establish lines between governmental power and individual freedom.
, Often achieved by put fundamental rights within in a constitution.
It protects us from arbitrary interferences from the states.
o Arbitrary detention.
o Arbitrary depriving people of their lives.
o Breaking up protests.
Order to establish lines between those two forces.
Establish rights and obligations of non-governmental parties.
Ex: as a citizen, there is an obligation of follow the laws of the states.
Ex: in return, the rights of protection of the state is guaranteed.
Accountability of government within constitutional framework.
Mandating periodic elections.
Remove politicians from office.
Judicial review of governmental action.
Provide permanency.
The constitution SHOULD NOT change week to week or month to month.
Ensure that basic rule on how the country operates don’t change too
regularly.
UK CONSTITUTION
Uncodified constitution
It is not an unwritten constitution, but an uncodified one.
It has several written sources contained.
It is not gathered together and written down in a single document.
Britain remains one of the three democracies in the world which are not
endowed with a codified constitution.
UK Constitutional law has a range of different sources.
Statutes.
Constitutional Conventions.
Court Judgements.
Common Laws.
Flat Constitution
, It is on the same level at any other law of the country.
Instead of Constitutional Law being higher than any other regulation.
There is two things that illustrate this situation really well.
Flat: the constitution lacks a hierarchy.
Amendment Procedure.
Review Procedure.
Amendment Procedure
UK Constitutional Law doesn’t require a special procedure to change articles.
It can be changed by a normal act of parliament passed by legislature.
Most constitutions require singularities to be changed.
Art 47 Irish Constitution: referendum to amend the constitution.
o The support of at least 50% of the people that are polled.
Art 5 USA Constitution - 2/3 both houses of the legislature (congress and
senate) + support of 3/4 of the State legislatures.
o There is a very high bar to change the Constitution.
This started to cause problems in different ways.
Constitutional Law should be permanent to secure stability.
o UK Constitution: arguably too flexible. So easy to change important
laws.
Repealing Human Rights Act 1998.
o Very important laws could be changed by simple majority of the
Parliament in the UK.
But not too much as not to be able to respond to social issues.
o US Constitution: arguably too rigid. It’s difficult to change old
provisions.
Second Amendment right to bear arms.
It used to be a good idea in the Independence Era but not here.
o It is so high and request too much to be changed.
Flat Constitutions has benefits and it has drawbacks.
Lord Woolf: “Our constitution has always been capable of evolving as the
needs of society change. The evolution can be incremental in a way which
would be difficult if we had a written constitution. But flexibility comes at a
price. We have never had the protection that a written constitution can
provide for institutions that have a fundamental role to play in society”.
Flexibility could be beneficial is responsive to how the society changes.
