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The Nature of the Constitution
1. What is a Constitution?
* Narrow meaning: A document having a special legal status which sets out the framework and principal functions of the organs of government within the state and declares the principles or rules by which those organs must operate.
* Wider meaning: The whole system of government of a country, the collection of rules which establish and regulate or govern the government.
* No written document alone can ensure the smooth working of a system of government. Customary rules and practices will evolve around a written constitution. The written document does not contain all the rules upon which a government depends.
* A constitution is a conceptual necessity of every legal system - in every legal system there are rules that specify the major institutions and officials of government, and determine which of them is to do what, and how they are to interact, and how their membership or succession is to be determined.
* The UK may have one constitution, three (England and Wales, Scotland, N Ireland), or four (plus an overarching one that determines the relationship between them).
* Horizontal Dimension : Constitutions will establish rules which will regulate the main organs of government, their constitution and their powers. These are the legislative, executive, and judicial organs. Many constitutions demarcate the devision of powers between the centre and the spokes e.g. The US Federal Government and the US State governments.
* Vertical Dimension : Rules that regulate the interrelationship of citizens and the state e.g. a Bill of Rights.
* Depth and Breadth of Constitutions : Depth - power of the executive is often dealt with very lightly, and in uncertain terms. It is very difficult to split the powers in high detail. Breadth - Some cover only main civil and political rights, whereas others include 2nd generation rights (Socioeconomic rights), and others even 3rd generation rights (biotechnology and date protection). Features of Constitutions
* The constitution is the top of the heirachy of norms in a legal system. E.g. the constitution validates a statute, which authorizes a minister to make bylaws in Oxford. The constitution is thus the source from which the validity of all other laws can be traced.
* The constitution provides stability - it can be amended, but only usually through a special method.
* It may be found in a single written document, or a small number of documents.
* It may contain provisions allowing courts to use judicial procedures to test the compatibility of laws with the constitution so those that are unconstitutional can be struck down. Constitutional review can be controversial - if a court overturns a decision of the legislature, then there is a counter-majoritarian rule. Most freedoms in Bills of Rights are very general, and so interpretation can be difficult.
* Constitutions are often entrenched - they can only be amended through special procedures which are different from those governing ordinary legislation. Constitutions issues should be taken off the agendas of party politics - e.g. by requiring a 2/3 majority or a referendum.
* Constitutions will normally contain some common ideology of the legal system, such as beliefs of the population about the way their society should be governed e.g. democracy, federalism, the rule of law.
* In a federal constitution, the constitution may limit both levels of government.
* A separation of powers may be in a constitution to avoid a concentration of power.
The British Constitution
* There is no written constitution, but doctrines of Parliamentary supremacy, the rule of law, and the separation of powers are the fundamental foundations of our constitution.
* There is no true federal system in the British constitution - for there to be Parliament's legislative supremacy would need to be curtailed, to stop it taking back devolved powers into its own hands. The limits on Parliament doing this are political rather than legal.
* The UK has a flexible constitution - constitutional rules do not require a special procedure to alter them as they do elsewhere. Many important constitutional rules are not rules of law, and so the British government depends less on legal rules and safeguards than upon political and democratic principles.
* One problem of definition in the UK is that many of the rules and practices under which our system of government operates do not have the force of law.
2. Sources of the Constitution
* In a written constitution, the sources of constitutional law would comprise (a) the constitution itself and any amendments made to it, (b) Acts of Parliament dealing with matters of constitutional importance and (c) judicial decisions interpreting the constitution.
* The formal sources of constitutional law in the British constitution are:
* (a) Legislation - including Acts of Parliament, legislation enacted by ministers and other authorities upon whom Parliament has conferred power to legislate, and legislation enacted by the organs of the European Communities.
* Eg. Magna Carta contained a statement of grievances formulated on behalf of important sections of the community which the King took to redress. The Charter set out the rights of various classes of the medieval community. It was a protest against arbitrary punishment and asserted the right to a fair trail and a just legal system.
* E.g. Petition of Right - protests against taxation without the consent of Parliament, arbitrary imprisonment, and the use of commissions of martial law in peace.
* E.g. Bill of Rights - disposed the more extravagant claims of the Stuarts to rule by prerogative right. Included a provision that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
* E.g. The Act of Settlement - provided for the succession to the throne, as well as provisions complementary to the Bill of Rights.
* E.g. Acts of Union, Parliament Acts 1911 and 1949, the European Communities Act 1972, the Human Rights Act 1998, the Constitutional Reform Act 2005.
* (b) Judicial precedent - decisions of the courts expounding the common law or interpreting legislation. Including decisions of ECJ.
* Common law - laws and customs which have from early times been declared to be law by the judges in deciding cases coming before them. Includes expositions of the law relating to the prerogatives of the Crown, the remedies of the subject against illegal acts by public authorities, the writ of Habeas Corpus.
* Interpretation of Statute - the courts have the task of interpreting enacted law in cases where the correct meaning of an Act is disputed. It is an essential principles of the concept of law that enacted laws should be interpreted by judicial bodies independent of the legislature which made the law.
* (c) The law and custom of Parliament - derives from the authority inherent in each HoP to regulate its internal affairs. The courts generally take the view that these matters are outside the law in its strict sense and are not directly enforceable in the absence of legislation giving effect to them.
* Each house has for centuries had certain privileges including power over its own procedure.
* (d) Other rules and Principles including Constitutional Conventions
* The unwritten maxims of the constitution. Rules of constitutional behaviour which are considered to be binding by and upon those who operate the Constitution but which are not enforced by the law courts, nor by the presiding officers in HoP.
* E.g. Royal Assent - it is a rule of common law that royal assent must be given before a Bill can become an Act of Parliament. There is a conventional rule that the royal assent is granted by the Queen on the advice of her ministers - if the ministers advised her not to so, the Queen could refuse to give her assent.
* E.g. The Queen has unlimited power to appoint whom she pleases as her ministers, but all appointments are made by the monarch on the advice of the PM and the principle of ministerial responsibility requires that the minister should belong to one or other HoP.
* E.g. A long standing conventional rule states that the government must have the confidence of a majority in Commons, so after an election has been lost the PM must resign.
* E.g. Sewel Convention
* These conventional rules may be used for discretely managing the internal relationships of government while the outward legal form is left intact. The rules themselves are often not even formulated in writing. Disputes may arise about the meaning and effect of conventional rules, particularly when not formulated in written form. The enforcement of these conventional rules may depend essentially on the force of public and political opinion. Conventions are observed because of the political difficulties that would arise if they weren't - these include being forced out of office. They are also observed for the positive reason that they express prevailing constitutional values as well as the negative reason of avoiding the difficulties that may follow from unconstitutional conduct.
* A minister in breach of the ministerial code knows that he should offer his resignation to the PM, and a refusal to resign may lead to a dismissal.
* These conventions ought not to be codified - to legislate in these areas and bring them under the jurisdiction of the courts would be to completely change their character. To prepare a single document would be to freeze evolving political practice at an arbitrary moment. Conventions by their very nature are unenforceable, so codifying conventions is a contradiction in terms.
* In the view of most constitutional conventions the stress on political or parliamentary remedies is appropriate. Many breaches do not affect an individual closely enough for a judicial remedy to be justified.
* Parliamentary government cannot be explained solely in terms of legal and conventional rules. It depends upon the political base, in particular the political parties, which underlie it. Political parties provide a basis for the government's authority. The tendency of the Westminster electoral system to reward the party with the largest number of votes by conferring the majority of seats is often said to provide strong government. Given the concentration of power in the hands of the executive, the system is tolerable only because of restraints, such as guaranteed elections every 5 years.
3. Conventions AG v Jonathan Cape LTD; A Cabinet Minister kept a diary recording Cabinet discussions and political events with a view to their publication. After his death the diary was sent to the Secretary of the Cabinet for his approval, but it was refused on the ground that the publication was against the convention of collective responsibility. Extracts were published in the Sunday Times, and AG applied for orders for injunctions agains the publishers and the publishers of the Sunday Times.
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