The Function And Sources Of The Constitution Location And The Control Of Power Parliament Notes

Constitutional Law Week 1- The Function and Sources of the constitution; Location and Control of Power; Parliament 1) General Barendt, An Introduction to Constitutional Law (1998) Chapter 1: ? What are constitutions? Often written documents outlining the powers of institutions (and limitations), fundamental rights and freedoms, and which can't be changed by normal legislation ? UK parliament is always free to amend laws that other countries consider "constitutional" ? UK constitution is a collection of rules outlining the system of government and the powers of each institution ? A legal rule can be enforced by the courts (e.g. freedom of speech) while non legal rules cannot (e.g. requirement that monarch assent to bills of parliament) ? When are constitutions introduced? 1. In ex colonial countries it is to give legitimacy to the new independent state e.g. India, Nigeria, American Articles of Confederacy 1776 2. To bring together citizens of a new state or a group of states by giving them a common set of principles/ common purpose e.g. Maastricht Treaty 3. To establish fundamental principles after revolution e.g. French Constitution of 1791, South African Bill of Rights, German Basic Law after WWII ? Liberal constitutions limit the power of institutions and set out fundamental rights of citizens and values of the community ? Constitutionalism is the organisation of political structures to prevent authoritarianism by a legislature or individual etc, whereas liberalism is the belief in the minimal intervention of the state in individuals' lives. ? Parliamentary sovereignty says that the courts must unreservedly accept and apply the laws of parliament and that to impose limits on legislation was against the constitutional principle of the "absolute legislator" ? Since Cromwells' "instrument of government" there has never been a codified constitution ? Parliamentary sovereignty is against constitutionalism because it fails to limit the powers of the legislature ? Parliamentary sovereignty has been limited since EC law prevails of domestic law, though in theory European Human Rights Convention (EHRC) won't affect it (In fact it has: Convntion dictates that where HL declare a law/executive order incompatible with EHRC, government has to repeal or amend the legislation/order: never been broken so far) ? Nominal/facade constitutions are maps of where power lies, but without limiting it e.g. Stalin's or Hitler's constitutions. Aim is to deceive foreigners or citizens as the despotic nature of the government ? Separation of powers is to prevent any one element from being to powerful ? Judicial Review is the ability of a court to invalidate legislation. UK doesn't have judicial review. ? Separation of powers is between judiciary/executive/legislature is horizontal. Vertical separation of powers is the division of powers between national and local institutions ? Flexible constitutions observe no distinction between constitutional laws and ordinary ones, while legal procedures can be amended as easily as legal rules e.g. Act of Union 1707 has been amended in the ordinary way several times. UK + Ancient Rome + New Zealand have flexible constitutions. Rigid constitutions require a particular procedure for amending/repealing/introducing constitutional laws e.g. USA or certain elements of German Basic Law. ? Some constitutions only set out basic principles e.g. US, while some set out precise parliamentary procedure, public finance rules etc e.g. German Basic Law. Shorter constitutions are better: they are easier to understand and therefore get more widespread acceptance. ? Older constitutions only tend to grant basic rights, while newer ones tend to grant economic and social rights too e.g. right to education ? Federal constitutions divide legislative and governmental competence between the centre and regions/states, while unitary constitutions give executive and legislative competence to the centre exclusively. UK is unitary despite devolution, since the powers of Scottish, Welsh and Northern Irish parliaments can be withdrawn by Westminster at any time. ? Parliamentary executive constitutions create governments from members of the majority party/coalition and members of the government sit in the legislature. Minsters and prime ministers are both individually and collectively responsible to 

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