UK Constitution

UK Constitution

1. Judicial review

   • Whether a consitutions codified or not its nessesary for courts of justice to interpret maning of its terms as result of challenge made by a citizen/association against an action/law made by a public body. When challenge is based on belief that action/law has broken strict rules of countrys consitution its nessesary for senior judges to review challenged action in light of those consitutional rules. Often the consitutions not clear; its real meaning needing interpreting or updating in light of new developments in society. Judges are constantly called upon to re-interpret & re-evalutate meaning of parts of consitution - know as judicial review.
   • Definition: process undertaken by senior courts where judges are required to interpret, re-interpret or clarify consitutional rules. Judicial reviews take place in response to appeals by citizens/associations. Means meaning of constitution can be clarified/adapted/applied to new circumstances.
   • When judges make their ruling theyve in effect rewritten the consitution (dont change actual wording). Theyve clarified/altered its accepted meaning. In a democratic system such rulings are binding on political system. Means even strictly codified & entrenched consitutions are eveolving as judges make new rulings/interpretations.
     • E.g in USA when a consitutions codified judical review takes place with close reference to actual wording of consitution. Judicial reviews by US Supreme Court have become key features of US social & poltical history.
       • Brown v Board of Education 1954: Court declared that segrefation of education on grounds of race violated constitutional principle of equal rights for all. Case was boost for growing civil rights movement in USA.
       • Roe v Wade 1973: Feminist group challenged anti-abortion laws on grounds that such laws violated basic consitutional rights of women. Court ruled that anti-abortion legislation was indeed unconsitutional. Feature film subsequently made about case.
       • Gregg v Georgia 1976: Court was asked to decide whether capital punishment should be abolished on grounds that consitiution forbids 'cruel & unusual punishment'. Court decided humane execution wasnt cruel or unusual so states were free to maintain/introduce death penalty.
       • Contrast= senior judges in UK dont have codified constitution which they refer to for guidance. Judicial reviews do happen frequently in Britian. Judges can interpret laws & actions in light of European Convention on Human Rights or many consitutional laws & conventions that exist in UK. They're effectively writting constitutional law. Difference from US= British judges in High Court, Court of Appeal, or Supreme Court may interpret consitution as they wish but its Parl that ultimately has power to overrule them & declare what the consitution means to them.
         • Contrast= US & similar systems - gov & legislature have to accept findings of a judicial review. Only way they can rewrite consitution is by engaging in complex amendment procedures. UK Parl can amend UK consitution by simple Act of Parl.
   • E.g of UK consitution & Judical Review: 'Belmarsh Case': December 2001- UK Parl passed Crime & Security Act, response to 9/11 atrocity in USA. Act gave gov the power to detain without trial anyone who was reasonably suspected of being internatioanl terrorist. December 2004- 9 men (inc radical Muslim cleric Abu Qatada) appealed against their detention without trial as it breached European Convection on Human Rights as part of UK consitution. Won case in HofL (equivlent of Suprme Court today). UK judges interpreted Convection to mean they could not be held indefinitely without trial. March 2005- 9 men released on bail with certain restrictions. July 2006- Uk Parl after several attempts to legislate agrees that suspected terrorists can be held without tril for up to 28 days after which they must be tried /released. This limited detention period is allowed under the European Convection.

2. Nature & Functions of a constitution

   • Constitution: Set of principles which may be written/unwritten that establishes the disribution of power within a political system, relationships between political institutions, the limits of government jurisdiction, the rights of citizens & the method of amending the constitution itself.
   • Most countries operate their political system within the constraints of a consitution & the consitution of the state is a written document thats been agreed on a particular occasion (codified). There are countires inc UK that operate without such a written consititution, but have a general sense thst a set of constitutional rules exists. Consitutions codified or not are a virtual aspect of most stable political sytems. All consitutions perform the same set of functions:
     • 1) Determine how political power should be distrubuted within the state inc federal settlements (in federal constitution) where power is divided between cenral gov & regional institutions as in the USA or unitary states (unitary constitution) where ultimate power lies firmly in 1 place, as with the UKs parliamentary system. Consitutions determine the balance of power between gov and Parl, between the president & prime minister & between 2 chambers in systems that are bicameral (2 houses of Parl).
     • 2) Constitutions establish the political processes that make the system work, inc relationships between institutions & rules that govern how they operate.
     • 3) A consititution normally states what the limits of governmental power should be-what is the competence of gov. British constitution is unusual as it places no limits on the competence of Parl. Being soverign Parl is able to do what it likes & has legal power to do so, we wouldnt exprect it to act in a dictatoral way. Contrast= US gov is circumscribed by countrys consitution.
       • 5) Consitutions establish the rules by which nationality is established- whos entitled to be a citizen & how outsiders become citizens. Implies a constitution defines the territory that makes up the state.
       • 6) Consitutions have to be amended. Essential a constitution contains within itself rules for its own ammendment. UK's unusal as its constitution changes in 2 ways- (1) through a simple parliamentary statute (2) slow evolution of unwritten rules (convenctions). Normally states have special arrangements for amending their constitution. In France & Ireland referendums needed to approve change. In USA its nessesary to secure a 2/3s majorityof both houses of Congress & approval of 3/4s of 50 states that make up the Union. Britian has no such methods of ammendment; its constitution has evolved naturally over time.
     • 4) Just as constitutions limit gov power so do they assert rights of citizens against the state. Most countries that claim to be democratic have some kind of 'bill of rights', statement thst prevents gov from trampling on civil liberties of its citizens.
   • Constitutionalism: Concept that a political system is governed by a constitution & that political institutions are bound by constitutional rules which are binding.

3. Codification

   • Codification: Process of setting out a constitution in an organised way in a single doc- it has a single source.
   • Advantage= constitution is clear & every citizens able to access it. When theres a dispute concerning constitutional arrangements, codified doc's an advantage. Codification of constitution normally occurs at crucial moment in a countrys history e.g aftermath of revoultution, civil war, or coup d'etat, or following creation of new state/ re-formation of troubled country. Single doc can povide people of a state with which something they can identify, e.g Americians worship their historic constitution treating it with reverence & pledging allegiance to it regulary. When esch new president takes office its part of his/her oath of allegiance that he/she agreeds to 'protect & defend' constitution/
   • Two-tier legal systems: when a country has a codified constituion its what is known as a two-tier legal system/dual legal system, means there's 2 levels of law. Higher laws= those that corncern constitutional arrangements- who has power, relationship between institutions, rights of citizens etc - these are safeguarded & entrenched. E.g in Germany these higher laws are known as basic laws. Such higher laws have speical arrangements for their enactment- referendum approval, 2/3s majority in legislature etc - so have diffrent status. Below these are ordinary laws which concern relations between citizens, administration of the state, criminality etc. These lower laws can normally be changed without specil procedures & areent safeguarded by any special procedures.
   • Uncodified constitutions: British constitution unusual since its uncodified. Some argue it doesnt exist at all. Parts of it are written, theres no single doc & there are important parts not written at all. Isreal, New Zealand & Canada also lack fully codified constitutions, but there are basic laws that describe constitutional principles & which are differentiated from other laws. Contrast = UK makes no distinction between consitutional & other laws - UK has a single-tier system & Britians uncodified nature means it has many soources not a single source.
     • British constitution isnt codified as a whole but theres parts of constitution that are codified - European Convenction on Human Rights is part of British Law (originally created by Council of Europe 1950) & its a codified doc. Treaties of European Union are codified docs that describe relationship between Britian & the EU. British constitution is partly codified, partly written, but fundamentally uncodified.

4. Entrenchment

   • Entrenchment is the device that protects a constitution from short term amendment. Important since constitutional changes make fundamental & important difference to a countrys political system. Constitution too important to be placed in hands of a temp gov. Country must be sure tht any proposed constitutional change meets 2 tests: (1)has widespread popular support for it (2)in long term interests of the country.
     • E.g of this principle concerns guarantees of human rights that exist in most states. In interests of parlicular gov to set aside some of these rights by amending part of constitution that deals with civil rights but would clearly dmage long term interests of the people. Dictatorial gov might seek to grant itself additional powers to protect its own position=democracy itself would be under threat.
     • To ensure 2 tests are met, special arrangements need to be established. E.g referendum ensures populr support for change & special parlimentary procedures ensure constitutional amendments in long term interests of the state.
       • Uk's unusual, its not possible to entrench consitutional principles since Parl remains soverign. Soverignty of Parl asserts that each individual Parl cant be bound by its predecessors, nor can it bind its successors. Meaning every new Parl is able to amend constitution as it wishes. All Parl has to do is pass a new parlimentary statute using smae procedure as for any other statute- can be done in 2 days. Gov in UK is normally able to dominate Parl using its majority in HofC& mandate of the people granted at eections. A dominant gov can effectively control consitution - many argue flexibility is an advantage.
         • E.g of executive power= when UK Parl passed Human Rights Act 1998, incoperated European Convention on Human Rights into British law. Became binding on all political bodies other than Parl itself. No special produdures needed, fundamental change to British consitution made through simple Act of Parl since British consitution isnt entrenched.
           • But its becoming common in UK to hold referendum when consitutional change is proposed. Was done for devolution of power to Scotland & Wales 1997, introduction of elected mayors in London & number of other locations, & to approve Good Friday Agreement in Northern Ireland 1998.Referendums alsoproposed to approve changes such as transfer of sovereignty from UK to EU & Scottish indeperndence. Effect of referendums is to entrench constitutional developments. Its inconceivable that changes would be reversed without another referendum to approve such a reversal. In 2010 general campaign Labour Party promised referendums of 2 issues - reform of HofL & change in elctroal system. Lib Dems also support referndums for key constitutional changes.
   • Unusal case of fixed-term parls & entrenchment in UK: After 2010 in UK, new coalition gov wished to change constitution to introduce fixed-term parls. This is a law stating that each new parl should sit for fixed-term of 5 years before next general election. Proposed law would take away convention that prime minister may name date of next general election. Intended this law shpuld be entrenched - every parl have 5 year life. Its not possible to entrench laws in UK. Meaning future parl (after 2015 election) could repeal Fixed-term parls Act 2011 & either shorten/lengthen its life or give back tp prime minister right to choose date of next general election. We cant say idea of fixed-term parls is permanent feature in UK constitution but may become convetion (unwritten long-term arrangement which is binding) that each new parl will set date of next general election at 5 years int future - become part of constitution without entrenchment.

5. Evaluating codification

   • Conservativies oppose introducing codified constitution to Britian & Labour govs have avoided the issue. Labour on a whole has preferred to make incremental changes to constitution, gradually introducing new legislation e.g Human Rights Act, Freedom of Info Act, Devolution Acts & House of Lords refrom to create clearer set of arrangements. Like conservatives, Labour doesnt believe the times right for a fll codified constitution.
   • Lib Dems & pressure groups such as Unlock Democracy are against conservative ideas. In favour of coming into line with other modern democracies by writing new British consitution. They're concerned with need for robust human rights & controls on gov power.

6. Arguments for retaining an uncodified constitution

   • Flexibility: Consitution can adapt to changing world without major upheavals, its 'organic' (rooted in society not seperate from society) so when society & its needs & values change, constitution can do so automatically without undue delay/confusion, Parl can pass new Act quickly & new unwritten conventions can simply develop to take account of social & political change. Examples:
     • 1) As authority of British monarchy gradually declined from 18th century be replaced by elected bodies(gov & Parl) no specific amendments needed be made. Power & authority moved naturally away from crown towards gov & Parl & practices changed. Many prerogative powers of monarch have been taken over by prime minister (to declare war, negotiaitate foreign treaties, appoint ministers). Power of monarchy to make law has been lost in peaceful protest (Glorious Revolution 1688-89). In countries where powers are codified & enrenched such changes have caused upheaval & violent revolutions- 19th century France or Germany between 2 world wars.
     • 2)Since 1960s posititon of prime minister has become more significant as result of media concentration on importance of that office. Growth of prime ministers power at expense of the cabinet has been gradual & natural process.
     • After 9/11 attack on New York 2001 threat of international terrorism becamemore acute. If Britian had had an entrenched & codifed constitution it wouldve been difficult for Parl to pass wide range of anti-terrorism measures due to too many constitutional constraints. Lack of consitution meant Parl could do as they wished. USA & many European countires have had greater problms dealing with terrorism due to fixed consitution( same applies to stubborn refusal of USA to intro stricter gun laws in case such a measure falls foul of consitutional right to bear arms).
   • Executive power: Consitutional safeguards in Britian are weak/absent=gov can be more powerful (viewed postitively/negitively). Supporters of current uncodified constittion say its better to have gov that can deal with problems or crises without too much inhibition. Look at USA where gov & Congress are frewuently prevented from acting decisively by fear that consitution will prevent them. Constant battle against crime in USA has been compromised by such restraints. Conversely consitutional weakness of Congress in controlling military powers of president has created tension. In UK, relationship between gov & Parl is flexible in courtries with codified consitutions it tends to be fixed & can inhbit effective gvernance.
   • Politicising the courts & judiciability: Codified consitution would involve the courts, Supreme Court esprecially, in disputes over its precise meaning & application. Seen in USA, many of these issues would be intensely political. E.g be conflicts over exact gov powers, nature of rights, relations with EU or relations between England, Scotland & Wales. Disputes like these can arise with uncodified consitution but be more common with codification. The consitution would become judiciable - judges arnt elected so arnet accountable. Critics say such political issues shouldnt be resolved by such judges its for elected representatives to make final decsions on consitutional mening.
     • Problem illustrated during 2011-12 when judges in UK were repeatedly asked to decide whether freedom of press should take precedence over need for personal privacy. Some said this kind of conflict should be resolved by elected Parl.
   • Uncodified consitution: Set of consitutional rules that exist but arent containted in single doc. Thus rules dont have 1 single source but a number of diffrent sources. Implies consitutional rules arent entrenched or safeguarded & therefore can be changed by Parl.

7. Arguments for introducing a codified constitution

   • Human rights: Need for stronger safeguards for invividual & minority rights. Britians adopted European Convention on Human Rights (by passing Human Rights Act 1998) but it remains weak as it can be overridden by Parl. Parl remains sovereign & no consitutional legislation can remove that sovereignty. In a codified consitution Parl couldnt pass any legislation that offended human rights protection. Status of rights in UK is confused. European Convention on Human Rights is part of UK law but its terms arent determined in UK. Convention is controlled by Council of Europe which was set up after WW2 & has nothing to do with EU. If a codified consitution were intro it would inc statement of rights in UK which could be controlled domestically.
     • Executive power: Conservatives & others wish to retain powerful position of gov in UK. Liberals & other reformers argue that executive gov power is excessive in Britian. Over powerful gov power threatens individual rights, position of minorities & influence of public opinion. By 'overpowerful' they mean theres insufficient controls on what gov does. A clear codified consitution would inhibit apparently irreversible drift towards greater executive power. Supports say there are no real checks & balances - principle upon which US consitution is based. its argued Parl needs to have more codifed powers to enable it to control gov on behalf of people.
   • Clarity: Most British citizens dont understand concept of a consitution- not suprising as Britian doesnt have a consitution in concrete form. Create real consitution so public awareness & support can grow. If people knew their rights & undeerstood how gov works better this could cure problem of political ignorance & apathy that prevails.
   • Modernity: Not having consitution people regard this as indiciation that Britians backwad in political sense & hasnt entered modern world- increased since Britian joined European Community. Lack of consitution makes political relations with EU difficult & its been frustrating both for British govs & for European partners when attempts have been made to create coherent relations with Europe. E.g. with a clear codified consitution we would understand true nature of our relations with EU with regard to such policy areas as industrial relations & consumer protection. Britians in process (particularly since 1997) of creating codified consitution, it may never be contained in single doc for forseeable future but increasingly large pats of consitution are now both written & effectively entrenched.
     • Aspects of consitution that conform to this analyisis:
       • European Convention on Human Rights brought into law by Human Rights Act 1998 is effectively a Bill of Rights. Thought it could be fully/partly repealed in future it seems politically unlikely.
       • Devolution Acts 1998 codify powers enjoyed by Scottish Parl & Welsh, Northern Ireland & Greater London assemblies.
       • Uks relationship with EU is codified in various treaties that Britians signed e.g Maastricht 1992, Nice 2001 & Lisbon 2009.
       • Publics right to see public info is codified in Freedom of Info Act 2000.
       • Status & conduct of poltical parties is now codified in Political Parties, Elections & Referendum Act 2000.
       • Important consitutional changes are effectively entrenched by fact that theyve been approved by referendum & can therefore only be repealed by referendum.
       • Electoral Commission has created a codified set of rules for the conduct of elections & referendums.

8. Unitary & federal constitutions

   • Unitary consitution: Sovereignty (ultimate political power) resides in 1 location at centre. Possible some power may be disributed to regions & local gov but its not the same as sovereignty. In unitary consitution central soverign power can overrule all other bodies & has right to restore all political power to itself.
   • Federal consitution: Sovereigntys divided between central bodies & regional insitutions. Such consitutions normally arise when a number of sovereign states come together & agree to surrender some not all of their soverignty to a central authority.
   • Although Britians devolved power to Wales Scotland & Northern Ireland Westminster Parl remains firmly soverign. Some say Britians now a quasi federation; implies powers have been devolved to Scotland, Wales & Northern Ireland are effectively entrenched so cant be returned to Westminster. Theyre not legally entrenched but seems inconceivable theyll ever be surrendered. Couldnt be returned without approval of referendum. Britians not a federal system but sometimes described as quasi federal. Political reason for such an arrangement is usually that a country contains strong regional diffrences/identities, these can be protected by ensuring regions retain some of their own sovereignty.
   • USA is best known federal consitution, negotiated & written 1787 & ratified by 13 states in 3 years that followed (now 50 states). Some main sovereign powers are divided in USA : Federal powers= Economic management, currency control, foreign policy, Defence policy & Foreign trade. State powers= Most crimminal law, Education, Property & sales taxes, Most policing & Industrial development.

9. Sources of UK constitution

   • British consitution isnt codifed nor entrenched some say it doesnt exist. Difficult to define since its constantly evolving.
   • Parliamentary (Consitutional) statutes: Acts of Parl that have effect of establishing consitutional principles. Human Rights Acts an example & also Parl Act 1949 which establishes limitations to the power of HofL & Scotland & Wales Acts which devolve power to those countries.
   • Consitutional conventions: A conventions an unwritten rule thats considered binding on all members of political community. Such conventions cant be changed in law but have so much moral force that theyre rarely disputed. Many of powers of prime minister are governed by such conventions e.g merely a convention that prime minister exercised Queens power to appoint & dissmiss ministers ,to choose date of general election & to grant various honours such as knighthoods. Its also a convention (Sailsbury Convention) that the HofL shouldnt block any legislation that appeared in the governing partys most recent election manifesto.
   • Historical principles & authoritative works: Similar to conventions, principles have become effectively binding since theyve been established over long period of time. Most important= sovereignty of Parl. Parl gov= principle that authority of gov is drawn from Parl & not directly from people. Rule of law is more recent development origninating in 2nd part of 19th century. It establishes principles of equal rights for citizens & gov itself is limitd by legal limitations. Historical principles ae attributed to important consitutional theorists e.g Blackstone (Parl soverignty) & A.V Dicey (rule of law). Rules on how to form a coalition are now authoritive consitutional work drawn up by Cabinet Secretary Gus O'Donnelll 2010.
   • Common law: largely Anglo-Saxon principle. Refers to development of laws through historical usage & tradition. Judges who occasionally must declar & enforce common law treat it as any rule of conduct that well established & generally acknowledged by most people.
     • Most important application of common law has concerned protection of basic rights & freedoms from encroachment by gov & Parl. Right of people to free movement & to gather for public demonstartions are ancient freedoms jealously guarded by the courts. As well as principle that Crown couldnt detain citizens without trial. Most part of common law principles have been replaced by statues & by European Convention on human rights which became UK law 2000. Occasionally theres no relevant statute, common law is invoked in courts by citizen with grievance against gov. Prerogative powers of prime minister are considered common law powers theyve never been codified or put into formal legislation. These powers are exercised by prime minister on behalf of monarch & inc commanding armed forces, negotiating foreign treaties, calling general elections & making appointments to gov.
   • Tradition: Similar to common law, consitutional traditions govern many of rituals of parl gov. Procedures of both Houses of Parl are traditional in anture as are some rituals. Practice of allowing queen to announce legislative programme for coming year (Queens speech) is tradition as are many rules of debate.
   • Europe: Parts of consitution have come from Europe. European Convention on Human Rights orignated from Council of Europe& any future changes needed to be approved by counciil treaties adopted by EU are effectively park of UK consitution. They determine relationship between UK & EU & establish division of soverignty between them.

10. Main characteristic of UK constituion

    • Uncodified nature: British consitution isnt contained in single doc, its a variety of sources thats why its uncodified. It does have statutes & books of authority or EU treaties but much is unwritten in form of conventions & common law/tradition.
    • Its not entrenched: When a consitutions entrenched its specially safeguarded against change. Entrenched consitutins have arrangments for amendment that are more complex than normal legislative process. British consitution isnt entrenched its changed very easily & quickly by Parl

11. Assessment of the British constitution

12. Sovereignty in UK