Types Sources of the Constitution Main Purpose of

Types & Sources of the Constitution

Main Purpose of Constitutions… • LIMITED GOVERNMENT!!! Let’s Look Back…. US Constitution in 1787 French Declaration of the Rights of Man and the Citizen in 1989 Bill of Rights of 1689 (UK) Act of Settlement of 1701 (UK)

Types to be Discussed • Codified vs uncodified • Unitary vs federal • Rigid vs flexible

Important Things to Remember…. • No constitution is entirely written – no constitution is entirely composed of formal rules that are legally enforceable (could also incorporate unwritten customs and practices) • No constitution is entirely unwritten – no constitution consists only of rules of conduct or behavior

Codified Based on the existence of a single authoritative document (written) Belongs to large proportion of countries, mostly liberal democratic countries • Preamble – core principles of the system of government • Main body – outlines the duties, powers and function of the major institutions of government • Bill of Rights – a statement of citizens’ rights and freedoms

Codified 3 Key Features: 1. The document itself is authoritative – indeed the highest law of the land thereby binds all political institution. Stands above even statute law. 2. Elements of the constitution are entrenched – they are difficult to amend or abolish 3. Judiciable – all political bodies (branches) are subject to the authority of the courts, especially supreme court

Uncodified Belongs to only 3 liberal democracies (UK, Israel and New Zealand) and handful of non democratic states 3 Key Features 1. Not authoritative – constitutional laws enjoy the same status as ordinary laws 2. Not entrenched – can be changed through normal processes for enacting statute law 3. Not judiciable – no legal standard set forth in authoritative written constitution to declare actions constitutional or unconstitutional

Unitary Establish the constitutional supremacy of central government over provincial or local bodies (power of UK Parliament overrides all)

Federal Divide sovereignty between two levels of government – central government and regional government both possess powers that the other cannot surpass (federal government & laws vs state government & laws in USA)

Rigid • Not easy at all to change provisions within the constitution **Codified constitutions more likely to be rigid because they are entrenched in higher law. **Some aspects of UK’s uncodified constitution have been rigid. . including parliamentary sovereignty and the constitutional monarch

Flexible • Easy to change provisions within the constitutions **Uncodified constitutions are usually flexible because laws can be changed through the ordinary legislative process **Codified constitutions can also be flexible through a process of judicial interpretation

Sources of the Constitution 1. 2. 3. 4. 5. Statute law Common law Conventions Works of constitutional authority European law and treaties

Statute Law • Formal written laws made by Parliament (Acts of Parliament) • Not all statute laws are of constitutional significance • Single most important source of the Constitution • Statue always prevails over all others sources • New statutes can be enacted and conventions/common laws can be transformed into statutes • ‘Politician law’

Common Law • A body of long-established laws based on tradition, custom and precedent that have come to acquire legal status • Largely created and refined by the courts on case-by-case basis • In other words… ‘judge-made’ **Royal Prerogative – formal powers of the Crown that accompany many powers of prime minister and executive branch **Traditional rights and freedoms – residual rights that rested on common law assumption that everything is permitted if not prohibited

Conventions • Key unwritten element within the constitution • Non-legal and lack clear definition • Non-legality equates to no legal consequences if rule ignored • Upheld by practical political circumstances – make politics workable Major constitutional conventions: 1) Exercise of Crown powers (powers exercised mostly by ministers than monarch) 2) Appointment of prime minister (monarch appoints leader of largest party in Commons) 3) Individual ministerial responsibility (relationship between ministers & departments) 4) Collective ministerial responsibility (relationship between ministers & cabinet

Works of Constitutional Authority • Works by authors & experts on constitutional issues • Helps to define what is proper and correct constitutionally • Written but not legally enforceable Reasons for Existence: 1. Many gaps and confusion in UK’s uncodified constitution with uncertainty about how general rules/principles should be applied 2. Job of interpretation – what the constitution actually means

European Law and Treaties • Upon joining EC in 1973, UK became subject to European laws & treaties • Higher status of European law over UK statute law • Treaty of Lisbon (Reform Treaty) – sets constitutional base for EU Other important EU laws and treaties: 1. Treaty of Rome 1956 – subjecting of sovereignty to EU 2. Single European Act 1986 – established single market (goods, services, capital) 3. Maastricht Treaty 1992 – political union & single currency

Principles of the Constitution 1. 2. 3. 4. 5. Parliamentary sovereignty Rule of law Parliamentary government Constitutional monarchy EU membership

Parliamentary Sovereignty • Absolute and unlimited legal authority of Parliament (ability to make, amend or repeal any law) • Central principle of UK constitution Based on 4 conditions: 1. Absence of codified constitution 2. Supremacy of statute law 3. Absence of rival legislatures 4. Parliament cannot make laws that cannot be unmade

Rule of Law • Second key principle of UK Constitution • Law should rule – applies to all conduct or behavior and covers both private citizens and public officials • In absence of codified constitution and higher law, government still subject to legal checks and constraints In other words… Government is NOT above the law!!

Parliamentary Government • Fusion of powers between executive branch and Parliament • Government governs in and through Parliament **Can lead to problem of elective dictatorship if the executive uses the sovereign power of Parliament for its own ends

Constitutional Monarchy • Role of the monarchy to promote popular allegiance and to serve as a symbol of political unity • Monarchy still considered dignified part although no meaningful power display Rights of the monarchy: To be informed To be consulted To warn To encourage

EU Membership Encroaches on parliamentary sovereignty in 3 ways: 1. European law is higher than statute law 2. Some EU bodies have supranational powers 3. The decline of the national veto (EU Council of Ministers) **Parliament has power to leave EU **Pooled sovereignty of EU allows for more to be gained

Next Class. . Strengths and Weaknesses of the UK Constitution Need for Constitutional Reform (Research activity –bring laptops tomorrow)

Homework • Select three of these significant statute laws 1. 2. 3. 4. 5. 6. Parliament Acts of 1911 and 1949 European Community Act 1972 Human Rights Act 1998 House of Lords Act 1999 Freedom of Information Act 2000 Constitutional Reform Act 2005 • Answer the following questions in regards to each 1. What are its most important provisions? 2. How does it limit government in some way and how successful has it been in doing so? 3. Has this statute been revisited in discussion or legally altered since its original date of being enacted? For what reasons? 4. In your own words and opinion, what makes this statute law significant?