Characteristics of the UK constitution essay plan PDF

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Characteristics of the UK constitution Essay Plan ‘The British constitution has always been puzzling and always will be’, Queen Elizabeth II. Describe and Analyse the characteristics of the UK constitution with reference to this statement. *BEGIN – ANSWER QUESTION DIRECTLY  The Queen is making a grand claim – throughout time – the constitution is puzzling  It is possible to make SOME sense of the UK constitution – legally speaking – especially when applying AV Diceys approach – this area of law is not going to be a distinct, predictable and certain as a codified constitution *NEXT – UNPICK VOCABULARY  Queen = head of state – increasing vast territory – 70+yrs  Queens’s observation has increased seriousness  ‘puzzling’ – synonyms = confusing, mystifying, perplexing, obscure etc. *PART OF THE PUZZLE – CONCERNS THE ‘FORM’  UK constitution has uncodified form  Most world constitutions – set out laws relating to executive legislative + judicial powers + rights of individuals = in written code – The principle is CLEAR  UK – equivalent power and rights are contained in the common law = constitution law made/discovered by the judges  Applies to all parts of the constitution *SUBSTANTIVE DETAILS ARE PUZZLING 1) Common law vests considerable power in the Queen - posing

problems from a democratic perspective Power to make government appointments Power to declare war Power to withhold consent for a Bill passed by government This is 'perplexing" from a democratic perspective as the Queen is not elected/appointed etc (hereditary).  By convention, in practise she won't on her discretion do above 3 - takes advice of prime minister etc. 2) Fundamental human rights are what the UK courts hold them up to be, applying the common law.  our rights under the UK constitution, aren’t set out, only in common law to assert - increase basis of understanding and asserting (they are tactic-implied without stated)  content of our rights are puzzling - when making human rights claim - most of the rights you think you have - may not exist -and you can only really find out after testing then (court ruling)

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3) Acts of Parliament - i.e. statute, is law only if judges recognises

as such  Due to no written constitution  Common law constitution means that the legality of legislation is determined by the courts. *DICEY’S CHARACTERISATION

 Our constitution, is a judge-made constitution, and it bears on its face all the features, good or bad, of judge-made law  He identified 2 core ‘judge made’ principles of law + parliamentary supremacy = argued scribed the UK constitution. *CRITIQUE OF DICEY’S ANALYSIS  JAG Griffith's

 He argued the UK constitution doesn't have a legal basis, as Dicey says, but a political basis.  Diceys idea of a common law constitution is an unattainable idea - as everything is political, including the judges . Politics determines outcome of disputes.  Political constitution. Response to Griffiths  Dicey acknowledged - that common law reflects political ideas  BUT he argued the politics the court operated at was above day to day party politics.  increasingly puzzling of constitution *ADVOCACY OF CODIFICATION AS A SOLUTION TO THESE PUZZLES  Possibility to codify the UK constitution – Advocacy goes back as far as constitutional code, 1830. ( Bentham )  Bentham advocated a UK constitution codified around the utilitarian principle of the ‘greatest happiness of the greatest number:' ( once a year election )  Writer constitution = so everyone is aware of principles MODERN ADVOCATE OF A CODE.  Jeff king - ‘The democratic case for a written constitution’  UCL academic + legal advisor to HOC constitution committee  He favours once in a generation writing/re-writing of the UK’s constitution OBJECTIONS TO CODIFICATIONS X - 'If it ain't broken don't fix it ',  once in generation re-writing is unneeded - stab into the dark, better to just stick with what you know as common principles PROCESS OF AUTHORING A WRITTEN CONSTITUTION = INCREASINGLY DIVISIVE

 Increase differences of opinions on the fundamentals = increase change of institutions – increase difficult to author due to lots of protests etc = increase opinion *CONCLUSION  Common law character of the constitution is understood by Dicey as puzzling, but increase positive sense  The UK is increase contemporary than other countries  Usually a constitutional code arises from a revolutionary moment (in US etc.) – UK been able to avoid that = smart constitution - eg BREXIT- decide key cases etc....