Constitutions and Liberal Democracy

• What is the definition of a constitution according to UCL's Constitution Unit?

  • A constitution is the rule book for a state. It sets out the fundamental principles by which the state is governed.
  • Describes the main institutions of the state and defines the relationship between these institutions
  • Places limits on the exercise of power and sets out the rights and duties of citizens
• What is the definition of a constitution according to Cornell University's Legal Information Institute?

  • “A constitution is the most fundamental law of a sovereign body. The term is capitalised only when referring to a specific constitution.”
  • Refers to a single written document that explicitly creates government institutions, defines the scope of government power and guarantees certain civil liberties
  • Doesn't need to be written and may refer to the general structure of a certain government
• What does a constitution do according to Ian Loveland?

  • Sets up limitations on the state and the exercise of power through the creation of institutions and rules
  • Sets out the role of institutions in that state, and what powers they have
  • Offers a symbolic function
  • Gives a country legal legitimacy
• • Constitutional rules apply above and below the level of the state
  • E.g., international law and federal governance
  • Different constitutions approach these rules in different ways
• The UK is a dualist system meaning that domestic law and international law are separate and to be applied to the UK international law must be incorporated into domestic law
• What was said about the dualist system in R v Secretary of State for Exiting the European Union [2017]?

  • "the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers."
• What three pillars does constitutionalism rest on according to Anthony King?

  1. A country's constitution should ensure that individuals and organisations are protected against arbitrary and intrusive action by the state
  2. Separation of powers - concerns the organisation of the state and ensuring that power isn't concentrated
  3. Relations between the state, however constituted, and the body of citizens
• Liberal Constitutionalism

  • Endorses liberalism
  • Preference for democracy, free market, capitalism, equality and respect for private property
  • Present in Europe, USA, Canada and Australia
  • There's usually a codified constitution and enumerated rights
• Transformative Constitutionalism

  • A constitution transforms a country and a legal order
  • Seeks to overcome the deficiencies of liberal constitutions
  • Focuses on socioeconomic rights
  • The post-apartheid South African constitution is an attempt at transformative constitutionalism
• Legal Constitutionalism

  • The law and judges are best placed to hold the government to account
  • In the UK, the idea of legal constitutionalism means holding those exercising political power to account through judicial review
• Political Constitutionalism

  • Restricts government power through political processes, actors and Parliament
  • Politicians, Parliament and the voters are best placed to hold the government to account
• • Democracy is an imagined order and all imagined orders are fragile and to survive they must attract large numbers of believers within the community and have a political authority must have legitimacy
  • “Democracy entails a political community in which there is some form of political equality among the people” - David Held
• Why is democracy an imagined order?

  • Enables citizens to be the source of political authority
  • Promotes co-operation between large numbers of people - parties, elections
  • Promotes competition and alternation in government
  • Promotes equality and freedom and other human rights
  • Prevents despotism and authoritarianism
• What problems come with a democratic order?

  • The problem of majoritarianism
  • Asks the question of what protections are available when oppressive or irrational ideas are favoured by a majority
  • What protections are there to avoid the ‘tyranny of the majority’
  • Democracy can be expensive
  • Elections cost money to the parties and spend millions of pounds
  • Democracy can be exclusionary
  • Many remote areas are ignored until there is an election in which parties seeking approval
  • Voting restrictions have been imposed which has disenfranchised 1 or 2 million people
• Northern Ireland


  The Act of Union 1800

  • Created the UK and abolished the Irish government
  • Irish Catholics were disenfranchised
  • War of Independence 1919

  Government of Ireland Act 1920

  • Divided Ireland deliberately to ensure a Protestant majority in N.Ireland

  The Troubles

  • 3 decades of conflict between nationalists and unionists
  • British Army was deployed for 38 years
  • The police carried out armed campaigns during the movement
  • More than 35K people were killed and 47K injured
• What is the dilemma of democracy concerning Northern Ireland?

  • The UK Parliament has passed legislation which treats Northern Ireland in a different way to Scotland, Wales and England
  • Northern Ireland is underrepresented in Parliament with only 18 MPs
• Trial by Jury is a human right that was taken away by the UK in Northern Ireland

  Northern Ireland (Emergency Provisions) Act 1973

  • Abolished trial by jury in Northern Ireland for serious specified offences

  Justice and Security (N.I) Act 2007

  • Replaced the 1973 Act and non-jury trials could be used on a case-by-case basis
• Dennis Hutchings for Judicial Review (Northern Ireland) [2019]


  • Hutchings was a Northern Irish soldier charged with attempted murder of a civilian which occurred in 1974
  • Hutchings was to stand trial by judge which he challenged as it was a constitutional right
  • The SC unanimously decided against Hutchings
• What did the Supreme Court comment on trial by jury?

  • It shouldn't be assumed to be the unique means of achieving fairness in the criminal process
  • It can be antithetical to a fair trial and the only way to achieve such is a trial by a judge
  • Trial by jury is not an absolute right and has been restricted by Parliament
• What was the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023


  • Any unsolved cases from the Troubles would no longer be pursued
  • Patricia Burns and Daniel McCready challenged this announcement claiming it was "so fundamentally unconstitutional"
  • N.I Court of Appeal said that Parliament is sovereign
  • The Act provided criminal and civil immunity if they gave an account of their crime and their conduct would expose them to investigation