Nature of the UK Constitution

• What does an uncodified constitution mean?

  It is not contained in a single document. Parts are written down but in different documents
• What are the 3 features a codified constitution must have?

  1. Must be contained in a single document
  2. Must have a single source and therefore have been created at one moment in history even if it has been since amended
  3. The constitutional laws contained must be clearly distinguished from other, non-constitutional laws.
• What are the features of an uncodified/codified constitution?

  • Flexible/Rigid
  • Unentrenched/Entrenched
  • Unitary/Federal
  • Evolutionary/Revolutionary
  • Non-judiciable/judiciable
• What does it mean by a constitution is flexible/rigid?

  Flexible: Any of the constitution's sources can be changed relatively easily by the government of the day

  Rigid: Changes to the constitution can only be made with formal amendments which are very rare.
• Advantages a flexible constitution

  Allows the political system to be more responsive to changing attitudes and ideas. For example, following the Dunblane massacre in 1997, the UK government was able to very quickly introduce sweeping gun regulations across the UK following public outcry.
• Disadvantages of a flexible constitution

  Less effective at protecting rights and this can lead to major conflict based on short-term populist ideas. E.g. the UK government could easily suspend the right to free speech after a major terrorist crisis, in a way the US government simply cannot, no matter how much they might want to stop protests or the free exchange of ideas.

  C/A: Public pressure is also a form of way for the government to be held to account. Restricting free speech may lead to a major uprising for example.
• What does it mean for a constitution to be entrenched?

  Entrenchment means constitutional rules are very well protected and difficult to change. Amendments require separate rules and procedures
• Entrenchment protects a constitution from short term amendment. In democracies with entrenched constitutions, constitutional reforms are removed from the hands of a temporary government and requirements are put in place to ensure:

  • that there is widespread popular support for a reform
  • that it is in the long term interests of the country
• Why is it not possible to entrench constitutional principles and laws in the UK?

  It is Parliament, rather than the Constitution that is sovereign. The sovereignty of Parliament asserts that each individual Parliament cannot be bound by its predecessors nor can it bind its successors
• All Parliament has to do to reform the Constitution is to pass a new parliamentary statute, using the same procedure as for any other statute. There is no 'higher standard' for constitutional laws
• As the government in the UK is normally able to dominate Parliament using its majority in the House of Commons, this means it can effectively control the Constitution
• What was the Fixed Term Parliament Act?

  It proposed a law stating that each new Parliament should sit for a fixed term of 5 years before the next general election. The Act would take away the unwritten convention that the Prime Minister could name the date of the next general election
• It was intended that the Fixed Term Parliament Act should be permanent. However, it is not possible to entrench laws in the UK. However, it may become a convention (an unwritten long-term arrangement that is binding) if it is repealed or amended.

  The fact that we had elections in 2017 and 2019 highlights how an attempt at entrenchment by one parliament can easily be overcome by the next.
• The use of referendums when constitutional change is proposed has become common practice in the UK. The effect of such referendums is to entrench constitutional developments. It is inconceivable that these changes would be reversed without another referendum to approve this.

  • 1997 Devolution
  • approve the Good Friday Agreement in 1998
  • Brexit 2016
• What does it mean for a constitution to be unitary?

  Political power is centered in one single place and all other regions and political bodies are inferior to that body. The Westminster Parliament retains ultimate sovereignty and power
• What are the 'twin pillars' that upheld the British Political systems?

  The Rule of Law and Parliamentary sovereignty
• In the UK, Parliament is sovereign, meaning it has ultimate legal authority to do things and cannot be overruled by anything else
• What is legal sovereignty?

  The ultimate authority and power to govern within a specific territory.

  E.G. Parliament can suspend or modify parts of the Human Rights Act
• What is political sovereignty?

  The ability to exercise legal power, dealing with the reality of matters rather than pure principles.

  E.G. Parliament may wish to abolish the Human Rights Act but doing so would be met by opposition in the UK and i, making it difficult to do
• What is popular sovereignty?

  The will of the people must be listened to and acted upon in order to maintain peace and the ideas of British Democracy.

  
  

  E.g. Despite a large majority of MPS at the time wishing to remain in the EU, Parliament voted to trigger Article 50 because it was the will of the people expressed through a referendum
• Non-judiciable: judges cannot challenge Parliament's ability to amend or change statute law.
• Judiciable: a court can decide if the actions of a government or their laws are 'constitutional'
• Fusion of power means that some or all branches of government overlap.
• A separation of power means that each branch operates independently of the other and acts as a check on each other.
• Members of the cabinet are expected to support government policies in public, even if they disagree with them privately.
• Constitutional Convention of Collective Ministerial Responsibility