Constitutions And Constitutional Conventions Notes

What is a constitution?

• Set of rules that prescribe the structure and functions of a government in a specified territory. They are used to:

  • Lay down institutional forms through which power is exercise

  • Allocate power (horizontally across branches and vertical through local government through to EU)

  • Impose constraints on government and establish where power starts and ends

  • Give legitimacy to a government, particularly considering the power they exercise over us.

  • Anticipate events and make provisions for the protocol in those events.

The British Constitution:

• It is written. But it is not codified in a single document.

• Theoretically there is no such thing as ‘constitutional legislation’ and nothing is on a higher footing than anything else (although this is questionable in light of decisions in cases like Thoburn).

• The constitution is given legitimacy by public consensus and acceptance. As far as procedural legitimacy is concerned, we rest on our laurels, especially when compared to countries like the US.

• Feldman sees the constitution as ‘the machinery through which we give authority to, choose between, and accommodate conflicts between visions [of the constitution], rather than a set of settled rules’.

Advantages:

• Incredibly flexible. Parliament can alter the constitution with great ease (allegedly), whereas it is near impossible in countries like the US.

• Being placed throughout legislation means it cannot be ‘suspended with the stroke of a pen’, like a single document.

• Parliamentary sovereignty approach is more democratic than giving strike-down power to unelected judiciary. Keeps the judiciary non-partisan.

• Upholds the principle of parliamentary sovereignty.

• Promotes the concept of a constitution as a living document that can evolve over time.

Disadvantages:

• Too flexible. Parliament can make and unmake any law. So there is no such thing as a constitutional right. Human rights are not sufficiently protected (threat to get rid of HRA).

• Unclear – what exactly are the ‘founding principles’ of the country? And what are our rights?

• No clear protection of the rule of law. The law is not necessarily certain.

• Separation of powers is unclear – ‘dividing lines’ are blurred (especially before the founding of the SC).

Should we codify? (Bogdanor and Vogenauer)

• Some argue that we have been shifting towards codification since 1997 (if we accept ‘constitutional’ statutes).

• Would want to include constitutional principles like rule of law, sovereignty etc. But these are in tension with each other – difficult. Would probably require Parliament accepting it is no longer sovereign.

Sources of the constitution:

• Statute – backed by the doctrine of Parliamentary sovereignty. Recently it has been questioned whether there is a hierarchy of Acts of Parliament (Thorburn)

• Common law – judges set precedent which can affect the constitution. Note, however, that Acts of Parliament can override a decision.

• EU Law – given effect by ECA 1972.

• ECHR – provides rides. Given effect by HRA 1998.

• International obligations – created by treatises etc.

• Royal prerogative – previously exercised by the monarch but now vested in HM’s ministers – include declaring war, making pardons etc.

Conventions

• Non-legal, generally agreed upon...

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