CONSTITUTION
Introduction
- constitution: set of most important rules, structure and powers of government, people’s most basic
freedom and right
- does not have a codified constitution.
- no single document, structure of the state, the way it relate to people.
- constitutional order evolved over time
- various institution, statutes, judicial decisions, principles and practices that is constitutional.
- source: The Cabinet Manual
- Geoffrey Marshall, ‘The Constitution: Its theory and Interpretation’, 4 distinguishable senses of
constitution
- combination of legal and non-legal rules, a single instrument promulgated at a particular point in
time, totality of legal rules, list of statutes
Classification of constitutions
- written and unwritten
- attempt by politician, codify all the important laws and rules
- in a single document
- no universal blueprint
- lack of a single overarching constitutional document
- no single moment of national political consensus
- nearest attempt by Oliver Cromwell ‘Instrument of Government’
- rigid and flexible
- see the value in its stability
- constant conflict, amid uncertainty, usually not happy ones
- political and social changes, existing constitutional arrangements have change and adapt
- very difficult in rigid constitution, relatively straightforward in flexible constitution
- simple Act of Parliament was passed when entering EU
- no constitutional requirement to hold referendum
- constitutional changes were politically very difficult
- republican and monarchical
- constitutional monarchy, head of state is an unelected king or queen
- constitutional significance is much diminished
- Lord Bingham, political power of the monarch has diminished to vanishing point
- prerogative power largely exercised by PM
- give elected head of state significant political power
- represent the nation as a whole, be above the political fray
- unitary and federal
- have a very large land mass, many aspects of decision making are divided
- truly national governmental functions exercised by national legislature
- political and constitutional conflict very common
- government from the centre is accepted more readily, weaker local government
- UK operated for centuries as a state with many features of a unitary constitution
- UK Parliament in Westminster legislated for the whole of UK
Sources of constitutions
- The Cabinet Manual 2001
- ‘A guide to laws, conventions and rules on the operation of government’
- a guide for those working in government
- not intended to be legally binding
- House of Lords Constitution Committee, Cabinet Manual has limited value and relevance,
not the first step towards a written constitution
- House of Commons Public Administration Committee, it should not be construed as the
start of a written constitution
- the statute book
- described as constitutional, include important rules, regulate the relation between different parts of
the government
- Magna Carta 1297, Bill of Rights 1688, European Communities Act 1972, Human Rights Act 1998
- acts do not neatly labelled as ‘constitutional’, question of judgment
- judicial decision
- statutory interpretation, making definitive rulings on the meaning of provisions in Act of Parliament.
- Common Law Methods, make obiter statements in judgments
- body of case law embodies fundamental values of the constitution.
- EU laws
- acts of the UK Parliament were the highest form of law prior to 1973
- EU law has supremacy over national law
- international laws
- customary international law, treaties
- the actually widespread and consistent conduct of the states
- the belief that such conduct is required, rule of law renders it obligatory
- The Geneva Conventions, defined the rights of wartime prisoners
- agreement under international law
- Treaty of Union 1707
Westminster Model and its problems
- government is drawn from the House of Commons
- UK Parliament is at the pinnacle of the constitutional system, with unlimited legislative
competence
- effective system ensuring that the ministers are politically accountable to Parliament
- relationship between Government and Parliament
- government is held in check by Parliament
- various aspects by which the degree of control can be measured
- AoP can be passed without the support of government
- provide limited opportunities for ‘backbench’ MPs and members of House of Lords to
introduce Private Members’ Bills
- very few Private Members’ Bills actually become statutes
- use of departmental select committee
- prevents the government from using government whips to influence more MPs to choose
chairs who are more malleable
- lack of constraint by a constitutional court
- inaccurate to assume UK Supreme Court has a similar role to US Supreme Court
- made a number of important decisions, caused considerable frustration, imposed
constraints on the will of Parliament
- made a number of very controversial decisions concerning the civil liberties of suspected
terrorists
- delegated legislation, in the form of rules, regulations and orders
- does not pass through parliamentary stages
- most statutory instruments are created by ministers
- parliamentary scrutiny is fairly minimal
- membership of the EU
- series of treaties which have contained measures integrating decision making and legislation into
European Law
- introduction of majority voting, rather than a requirement of unanimity, particular challenge to
Westminster Model
Reforming the Westminster Model
- debates on topics selected by backbench MPs
- Backbench Business Committee, allocate a limited amount of parliamentary time, debates on topics
selected by backbench MPs
- Draft Bills
- criticised the quality of the drafting of controversial AoP
- publish some draft bills, allows more time for comments and improvements
- idea of direct democracy
- the belief that law making have greater acceptability from voters, they have direct say
- significant challenge to Westminster model, law is the best made by representatives of the people
Conclusion
- every constitution will vary with society
- had long-established doctrines, principles and codes of conduct, embedded in the minds and hearts
of its people
- managed to develop one of the best legal systems in the world, have an excellent system of
governance
- believe that the system of an unwritten constitution works and works well
- it has been developed based on not only great events but great minds of the region giving it
a distinct flavour of pride
- nothing is like its kind and it is definitely functional
- with that in mind one must ask himself, "Why should I fix that which is not broken"?
