Public Law

Tutorial 2023/2024
Constitution
1. Define a constitution.
The whole system of government of a country, the collection of rules which
establish and regulate and govern the government.”
- K. C. Wheare
It is the set of laws, rules and practices that create the basic institutions of the
state, and its component and related parts, and stipulate the powers of those
institutions and the relationship between different institutions and between
those institutions and the individual.
-HL select committee on the constitution 2001
The set of laws, rules and practices that create basic institutions of state, and its
component and related parts, and stipulate the power of those institutions and
the individual.
-General definition

2. State the classification of constitutions.

• Written or unwritten
• Rigid or flexible
• Republican or monarchical
• Unitary or federal
• Supreme or subordinate
• With separated powers or fused power

3. Explain
a. Written/ unwritten –
A written constitution is representative of an attempt by politicians and
statesmen to codify all the important laws and regulations relating to the way in
which a state is governed. Therefore, all key constitutional provisions will be
provided within a single written document. For example- ‘The Constitution of the
United States, The Constitution of France.
A codified constitution is seen as the ultimate source of legal authority. It is seen
as a higher form of law than standard legislation. Therefore, in states with a
codified constitution, there will be a ‘Constitutional’ or ‘Supreme’ court whose
function it is to uphold the constitution- with regard to government action or
legislation.
In contrast, the U.K. supreme court with an ‘uncodified’ constitution does not
perform such a function. Its constitution consists of legislation, common law,
Crown prerogative and constitutional conventions, which come together to form
its constitution- referred to as the ‘dispersed constitutional rulebook’. British
history explains the largely uncodified nature of its Constitution, which is the
result of a slow and incremental evolution of its legal system. This is in clear
contrast with states with codified constitutions where a historical break from
colonisation or a monarchical system resulted in a fresh start ex- the American
War of Independence (1775-1783) and the French Revolution (1789)
a. Rigid/flexible
Another important facet of a constitution is that it provides an element of
stability to a country. Stability in the political sense means the firm continuance
of political institutions over time. It provides certainty and structure to the
relationship between the judges and elected politicians. In a ‘rigid’ constitution
many of the rules will be ‘entrenched’. An example of this is the American
Constitution. That is, the constitution itself will set out stringent procedures for
amending the provisions in the constitution. The American Constitution of 1787
requires that for any amendment, the proposal must have been made by the
2/3rd majority vote on both houses of Congress (The Senate & the House of
Representatives) and also approved by 3/4th majority of all the state legislatives.
By contrast the UK constitution is ‘flexible’. The Parliament can alter the
constitution through a simple majority vote.
The two constitutions can be contrasted through the method by which the United
Kingdom shared its political sovereignty with other European states when it
entered the European Community (now the European Union) in 1973, through a
simple Act of Parliament( the European Communities Act 1972). Although a
referendum was held to endorse the decision, there was no constitutional
requirement to hold one. The European Communities Bill was introduced in the
House of Commons for its first reading on 26 January 1972 and received royal
assent on 17 October 1972 .By contrast the ratification of the 22 nd amendment to
the American constitution which limits the number of times a person can be
elected president took 3 years, 343 days to be proposed and ratified.
4. What are the various sources within the British constitution.

 Acts of parliament
 Judicial decisions
 Constitutional Conventions
 European Law
 Cabinet manual

5. What are the advantages of a written constitution.

According to Sir Robert Blackburn’s second report to the House of Common’s

Political and Constitution Reform Committee he identified a set of arguments in
favour of a written constitution. It would make it accessible and transparent to
the citizenry, allowing them informed participation in the democratic process. In
the U.K. due to the dispersed nature of the constitution the rules are spread
across common law, European treaty obligations and uncertain and unwritten
conventions -that are impenetrable and debated by constitutional scholars. It is
open to government manipulation, where politicians can enact constitutional
reforms and use loopholes in conventions to achieve their short-term political
goals.
Its esoteric nature discourages popular participation in the political process,
which is the very essence of a representative democracy. In contrast a codified
constitution would clearly define the boundaries of the British State and its
relationship with Europe. This would make it more difficult to spread
disinformation around EU overreach for political benefits, as what happened
during the Brexit referendum. It would also provide stability to institutions that
are undergoing major upheaval as a result of the Ukraine war and subsequent
energy crisis, the pandemic, and the ongoing Brexit process.
6. What are the disadvantages of a written constitution.
A clear disadvantage is that a codified constitution tends to be rigid and
entrenched by nature. Higher law requires formal and time-consuming legislation
to affect changes. The British constitution which is evolutionary and flexible in its
nature is more equipped to keep pace with the rapid pace of societal change.
In response to the argument that it creates an elective dictatorship, it is clear that
the Westminster model has checks and balances built into the system. This is
clearly highlighted by PM Boris Jhonson’s repeated flouting of uncodified rules
and his desperate bid to stay in power which culminated in the system prevailing
and Boris Jhonson being forced to step down.
It would also create more litigation in court and politicise the jury. In a
representative democracy, the final say of legal rules should rest on elected
legislative not the unelected judiciary.
Finally, this is a major change that would tie up considerable resources for a
significant time period. Considering the issues facing U.K. today with the
navigation of Brexit and the cost-of-living crisis , this is low priority even for those
within the government who support the idea.
7. What are the three models suggested to adopt a codified constitution.
A codified constitution could take three forms.
Constitutional Code – A document sanctioned by the parliament but
without statutory authority, setting out the essential existing elements and
principles of the constitution and workings of government.
Constitutional Consolidation Act- a consolidation of existing laws of a
constitutional nature in statute, the common law and parliamentary
practice, together with a codification of essential constitutional
conventions.
 Written Constitution- a document of basic law by which the United
Kingdom is governed, including the relationship between the states and its
citizens, an amendment procedure and elements of reform.

8. Should the UK have a codified constitution.

I am of the opinion that the UK should not have a codified constitution. During
recent years there have been greater calls for establishing a written constitution.
There are some ways this could be done without expanding the constitutional
role of the judiciary. However, in essence any supreme law which sets out to
regulate relations between the citizen and the state must by necessity put some
rights beyond the reach of the elected legislature. But the power which the
legislature loses under such a scheme does not simply disappear, it passes to the
sphere of the judiciary. Judges recognize, interpret, and sometimes create
constitutional rights. Successive surveys by the Hansard society shows declining
public trust in politics and increased trust in the courts. However, courts do not
produce decisions based on extensive debates and compromise that a
representative democracy requires. Judges come at a problem from a point of
intellectual inquiry, it does not factor in the messiness of public life.
It is also flexible, which has allowed the UK to weather significant changes such as
the industrial revolution, rising nationalism from Wales, Scotland and Ireland. One
major example that highlights the value of constitutional flexibility is the process
of devolution. Devolution radically altered the internal workings of the United
Kingdom, but it was achieved politically by ordinary legislation after a general
election in which it was part of the successful party's manifesto.
The recent upheaval in the parliament - the resignation of Boris Jhonson and Liz
Truss - did not even resolve itself in a vote of confidence in the Commons.
Political pressure and the inability to form functioning governments forced
candidates that lost the public trust to step down.
The world itself is navigating a period of radical change and remarkable economic
stress. Political upheaval in moments such as this is not unusual. It is however, not
a reason for establishing a codified constitution. On the contrary it is a reason for
retaining the current uncodified constitution. There are measures around
improving political participation and party candidate selections that are
necessary. However, a move to a legal system from a political system is not the
answer.