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The Constitution, The highest level of constitutional law able to override…
The Constitution
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- codified constitutions - based on a single document which lays down the core principles of the system of government, outlines the duties, powers and functions of government and may also include a statement of citizens’ rights in a bill of rights
Authoritative, constitutes ‘higher’ law - the highest law of the land. Gives rise to a two tier legal system in which the constitution stands above statute law made by the legislative
Provisions of the constitution are entrenched. They are difficult to amend or abolish. The procedure for making and changing the constitution is more complex or difficult than for ordinary laws
It is judiciable, all political bodies are subject to the authority of the courts, and in particular to a constitutional court
- Unitary and federal constitutions
- Federal constitutions: divide powers between two levels of government. Both central government and regional government possess a range of powers that the other cannot encroach upon. Many argue that as devolution has deepened, the UK’s constitution has acquired a quasi-federal character (relatively autonomous levels of government, national and regional)
- unitary constitutions - establish the constitutional supremacy of central government over local bodies, this is achieved by entrusting sovereignty in the national legislature, it can create or abolish, strengthen or weaken all other institutions. In the UK, this is Parliament. Devolved assemblies and local authorities do not enjoy a share of sovereignty.
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- Uncodified constitutions - They are rare, only three liberal democracies (the UK, Israel and New Zealand) have uncodified constitutions
Non-authoritative, constitutional laws enjoy the same status as ordinary laws. States that have uncodified constitutions have single tier legal systems with no higher law
Not entrenched, can be changed by passing a statute law. This is reflected in the UK in the principle of parliamentary sovereignty through which parliament can make, unmake and amend any law it wishes.
Uncodified constitutions are not judiciable. In the absence of higher law, judges do not have a legal standard against which they can declare laws bodies as ‘unconstitutional’
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- The highest level of constitutional law able to override common law, works of constitutional authority and conventions
- examples include : Scotland act (1998) established the Scottish parliament and government of wales act (1998) which established the Welsh Assembly
- Human Rights Act 1998, translated the European convention on human rights into statute law
- Constitutional reform act 2005, provided for a supreme court to take over the role of the law lords
- Body of law created by judicial rulings established over time. Occurred through the use of precedent: judgements in similar cases are recorded and taken to be binding on later cases. Common law is sometimes seen as ‘judge made’ law
Common law exists where there is no statute law, murder is the best example. Common law also occurs where statute laws may be vague or contradictory.
- 1991 case R v R, Prior to this case, forced sexual marriage within a marriage was not considered illegal and a husband could enforce ‘conjugal rights’ on his wife without committing rape based on the belief that a wife had provided consent through the contract of marriage
- The R v R case changed the law because the courts ruled that any non consensual sexual activity is rape
- Customs or traditions that have endured throughout history. E.g it is a convention that a government resigns if it loses a general election, it has never been an issue in modern politics.
- They are upheld by practical political circumstances, the convention that Royal Assent is always granted (monarch’s approval of legislation passed by Parliament) is upheld by the monarch’s desire not to challenge the ‘democratic will’.
- The powers of the royal prerogative are exercised by the prime minister, not the monarch. These powers include the power to appoint, and sack ministers, to dissolve parliament and to ratify international treaties
- Individual ministerial responsibility broadly defines the relationship between ministers and their departments, and it defines grounds on which ministers should resign.
- The need to consult works by authors who are considered to be authorities on constitutional issues. They help to define what is constitutionally ‘correct’ although they are written, they are not legally enforceable. Needed for two reasons,
- Gaps and confusions in the UK’s uncodified constitution, with uncertainty about how rules and principles should be applied in practice
- Authoritative works carry out the job of interpretation - saying what the constitution actually means
- Because they lack legal authority, they are only consulted and followed if they are considered to be relevant and their authors respected
- Walter bagehot the english constitution (1867) distinguished between the ‘dignified’ parts of the constitution (the monarchy and the lords) from the ‘efficient’ parts of the constitution (the Cabinet and the Commons)
- Erskine May’s Treatise on the law: privileges, proceedings and usage of parliament (1844). this provides the most authoritative account of the practices, procedures and rules of parliament and was used by Speaker Bercow during the Brexit crisis in parliament