Tutorial 1 THE Nature AND Sources OF THE UK Constitution PDF

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Existence of UK Constitution...

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TUTORIAL 1: THE NATURE AND SOURCES OF THE UK CONSTITUTION Constitution depends on the history of the country 1a - The UK constitution is found in statutes, primary legislation, acts of parliament, common law (Entick v Carrington 1765 - exercise of executive power must be authorised by pre-existing legal authority), royal prerogative, constitutional conventions, european union law and the european convention on human rights. 1b - rules not found in one document; series of documents, Magna Carta, Bill of Rights Act 1689, Scotland Act etc 1c - unwritten would suggest that the constitution derives purely from convention, practice, tradition and has nothing that is written down in a legal document, however, this is not the case for the UK constitution. The UK constitution is uncodified, which means that the vast majority of the state’s constitutional rules are not contained in one written document 1d - the UK constitution is ‘political’ rather than legal which means that it is essentially governed by the politics of the time, and the particular leader’s political aims. It is easily changed through Acts of Parliament. 1e - The UK constitution is not entirely flexible, as prerogative cannot be easily changed, as it is a residue of monarchical power, no new prerogatives can be created/broadened, it can only be displaced by primary legislation on the same topic. Parliamentary sovereignty, constitutional convention, referendums. Uncodified ≠ flexible 2a - a constitution establishes the system of government - ‘a constitutional order derives its legitimacy from the constituent act which establishes it’ ; prior to the creation of government; the power of the constitution is therefore above that of the government a constitution owes its power to the people who endorse its terms; give legitimacy to the constitution - constituent power, US - ‘we the people’ constitution is superior to other laws - the constitution both empowers and limits, the power exercisable by the branches of government; constitution is entrenched - protected from amendment or repeal. 2b - In the UK, constitution is not superior or antecedent to other laws, as the constitutional principle is of Parliamentary sovereignty, which means that statute is the highest form of law. The Uk constitution is also flexible and fluid, it is updated as time goes on and it is political, as political parties can propose, initiate and bring legislative change that reflects their political aspirations. The constitutional rules are subject to reform on the basis of majority votes in Parliament and the constitutional conventions are governed by political rules rather than legal. The UK does have a constitution, just a more modern one which is governed by the politics of the time, while this does not restrain government’s power as much as if it was written/codified, the constitution does otherwise exist.

2c - Anthony King - the fact that Britain lacks a capital C constitution is far less important than is often made out, as large chunks of other countries capital C constitutions are not written down. Having a diversity of sources doesn’t mean that the constitution doesn’t exist. The long era of constitutional continuity has ended, continuity and gradual evolution have given way to radical discontinuity and the traditional British constitution no longer exists. “The set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions… and the relationship between the individual and the state” A. Tomkins focuses on flexibility but explains that the constitution may be less flexible than originally thought (stands up for power and weight of conventions, challenges the idea of conventions because they are not legally enforceable) - more nuance to the idea of flexibility Queen’s powers under the prerogative Queen selecting PM Queen’s other prerogatives should be exercised on the advice of Ministers, or the relevant Minister Queen should give Royal Assent to any Bill properly passed by Parliament The Queen’s power to appoint and dismiss Ministers is to be exercised on the advice of the PM 3a - non-legal rules of conduct guiding the actions of and relationships between politicians and officials under the UK constitution. Can’t be enforced in courts. Sir Ivor Jennings ‘they provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. 3b - democratic legitimacy, political solutions to political problems 3c - hard to make sure that people are held accountable - ministerial code not always stuck to 3d - Sewel Convention safeguards the devolved govt. From legislation from the UK. also enshrined in statute. legislative consent motion Convention can’t be applied by courts 3e - weakness; conventions are not explicit, they are uncertain; need to be respected by the political party in power...