UNIT 1
What is a Constitution
Key Features of UK constitution
UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND
• England – 53 million (84%)
• Wales – 3 million (4.8%)
• N. Ireland – 2 million (2.8%)
• Scotland – 5.4 million (8.4%)
DEFINITIONS
“a set of rules which define the institutions of government, assign to them areas of
operation, set limits to their functions, establish their inter-relationships and prescribe the
relative rights and obligations of other, non-governmental, interests. This dual
character--political and legal--is not unique to constitutional law … But constitutional
law's combination of these elements is more overt, more conscious and more central--
indeed, symbiotic: the very reason for the development and existence of these rules is to
define, organise, contain and enhance the exercise of political power; and the content of
these rules responds to historical, social, economic and political developments” Peter
Hanks
CONSTITUTION
“a set of arrangements that enjoys popular legitimacy, enabling people
to be governed in a way they regard as acceptable. This can be
achieved by having debate about what the constitution should contain
and then holding a referendum on its contents. Constitutions reflect a
consensus on how the country should be run”. Professor Mark Elliott
CONSTITUTION
“The Constitution should allocate power in a manner that is morally acceptable
(reflects fundamental rights) to those over whom it is exercised. Constitutional law
is ‘expected to confer authority and legitimacy on the process of governing’. It
should limit the capacity to use its powers in arbitrary, anti-social and
unaccountable ways. Constitutions subject states to moral values and principles,
thereby converting brute force into legitimate authority”. - Professor David
Feldman
Accountabilit
y of
Government
Define
Institutions + Permanency
Functions
Constitution
Morally
Establish
Acceptable to
Rights
Citizens
Popular
Support of
Citizens
UNCODIFIED CONSTITUTION
• Not an unwritten constitution - UK constitution contains written sources
• Uncodified constitution - not collated and written down in a single document
• Sources
• Statutes
• Constitutional conventions,
• Court judgments
• Common law
FLAT CONSTITUTION
• Instead of constitutional law being superior to/higher than other law in the State, it
is on the same level as it
• The constitution lacks a hierarchy - it is flat
• Two illustrations of this
1. Amendment Procedures
2. Review Procedures
AMENDMENT PROCEDURE
• Most constitutions require a special procedure to change articles
• Art 47 Irish Constitution - referendum to amend the constitution
• Art 5 USA Constitution - 2/3 both houses of the legislature (congress and
senate) + support of 3/4 of the State legislatures
• UK’s constitutional law does not have any special procedure for amendment,
it can be changed by a normal act of parliament passed by the legislature.
AMENDMENT PROCEDURE
• Constitution should be permanent enough to secure stability, but not so
permanent as to not be able to respond to social issues.
• US constitution – arguably too rigid – difficult to change old provisions e.g.
second amendment right to bear arms
• UK constitution – arguably too flexible – too easy to change important laws
e.g. repealing Human Rights Act 1998
AMENDMENT PROCEDURE
“Our constitution has always been capable of evolving as
the needs of society change. The evolution can be
incremental in a way which would be difficult if we had a
written constitution. But flexibility comes at a price. We
have never had the protection that a written constitution can
provide for institutions that have a fundamental role to play in
society”. Lord Woolf
REVIEW PROCEDURE
• Other constitutional systems place constitutional law above ordinary laws passed by the
legislature, the UK does not
• Under US law, if legislature passes a law that the higher courts consider is
incompatible with the constitution, the court can annul that law – Marbury v Madison
• Art 15(4) Irish constitution “Every law enacted by the [legislature] which is in any
respect repugnant to this Constitution or to any provision thereof, shall, but to the
extent only of such repugnancy, be invalid”.
• Under UK, law higher courts have not power to annul legislation which is inconsistent
with UK constitution
Multi-Layered Constitution
Power
Executive Judiciary Legislature
Devolution
UK Parliament
- Westminster
Devolution Scottish
Parliament -
Holyrood
Welsh Parliament -
Senedd Cymru
UK Northern Ireland -
Parliament - Stormont
Westminster
Local Authorities
UNCONSTITUTIONAL BEHAVIOUR
• Many written constitutions define what amounts to unconstitutional behaviour and a
process for dealing with it
• US constitution allows empeachment of president and removal from office if they
commit “treason, bribery, or other high crime and misdemeanors”
• UK constitution does not provide a decisive statement on what is constitutionally
illegitimate nor does it determine what should happen if this arises.
UNCONSTITUTIONAL BEHAVIOUR
Flat Uncodified
UK Flat
Constitution
UK
Constitution
Unconstitutional
Multi-Layered Behaviour
