Now the title of this blog may not exactly establish a ‘haud me back’ moment, but it is a vitally important area of law for anyone who intends to progress to studying at higher education and, pivotally, for those intending to study law. It is not really covered at FE (and certainly not in any detail) so I am hopeful this will be well received by those at, or planning to go, to university.

Sources of the UK constitution by Tom Loughlin on Prezi Next
(prezi.com)

In reality, every country requires a ‘system’ of law and a government (though sadly, in 2020 we see regularly from the news this simply does not appear to be so, globally). It is important so that the ‘state/citizen relationship’ can work effectively and the various ‘rules’ created by Government can be effectively implemented and managed. This process is generally referred to, in fairly broad terms, as a ‘constitution’. The name immediately conjures up images of the USA and their beloved (written) constitution of 1787 which, despite being written over 230 years ago, is as revered today as it ever was. One thinks of the 2nd amendment (the right to bear arms), and the 5th (the right effectively to silence and not to self-incriminate) amongst the seven that there are in total.

US Constitution Fast Facts - CNN
(cnn.com)

So, the word itself, ‘constitution’, is often referred to, as in the case of the USA, to be a written (formal) document setting out the state’s ‘rules’ and the ‘framework’ for the rights and responsibilities of its’ citizens.

Unusually though, the UK does not have any such written document. But that does not, of course mean that we do not have a constitution, per se. In 2001/2, The House of Lords described the UK’s constitution as ‘…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 the different institutions and between those institutions and the individual’.

The ‘key components’ as regards the constitution in this country are ,therefore:-

  • the ‘rules’ (for our behaviour) as created by the government/(state)
  • who is actually defined as a ‘citizen’ – as in the ‘state/citizen’ interrelation
  • how the government is elected
  • how ‘rules’ that are created can be altered, modified and even abolished and replaced

Furthermore, there are some major differences between our constitution and the American equivalent : one is that ours is ‘parliamentary’ as opposed to ‘presidential’. The latter, applicable to the USA, means that a ‘President’ does not sit in the legislature. They are merely a ‘head of state’. A parliamentary system comprises a cabinet with a series of ministers and headed by a ‘Prime Minister’. So the differences are marked, nothwithstanding any other similarities.

It is said that the UK has an ‘unwritten’ constitution’ but, in many ways, I consider that to be a little misleading, especially for students. Despite not having one single document (like the USA), the reality is that our constitution comprises a morass of statutory legislation and common law. Theoretically, therefore, we could engather all the salient parts found in both statutes and cases and pull them together to have one single flowing document.

The rules ,insofar as they relate to the UK, are generally found in what we normally learn as being some of the ‘sources’ of our law. They are most commonly found in acts of parliament, judicial precedent, custom and authoritative writings by some of our country’s most famous institutional writers and jurists.

Some particularly influential pieces of legislation, worthy of note, examination and research are:-

  • The Bill of Rights 1689 – the Bill of Rights by the English Parliament (and the corresponding Claim of Right in Scotland -( https://www.youtube.com/watch?v=pJoI4r8xYdc ) – (NB – note the date – pre-1707 (the Act of Union)) – the significance of these was that the monarch could no longer ‘make laws’ (or impose any tax-raising legislation) without the approval and consent of Parliament
  • The Act of Union 1707 – Scotland and England became a ‘union’
  • The European Communities Act 1972 – shortly to become defunct as a result of the 2016 referendum, the significance of this 48 years ago cannot be underestimated. There is still ongoing, endless even, debate that the UK’s departure from the EU may not happen
  • The Human Rights Act 1998 – which enshrined the ECHR into UK law
Michael Fry: Scotland needs its own Human Rights Act – to protect ...
  • The Scotland Act 1998 – arguably the most significant piece of legislation in Scotland since 1707
3rd Report, 2015 (Session 4): New Powers for Scotland: An Interim ...

With regards to the common law (case law), the first thing to say is that ‘judicial precedent’ (‘stare decisis’) is actually of less importance to issues relating to constitutional matters than other branches of law. This simply because so called ‘constitutional matters’ rarely come before the courts and they (the courts) have no power to question the validity of a piece of statutory legislation. ( NB – An important exception to this point is where there is a perceived conflict with EU legislation – all discussed in relation to the ‘Parliamentary Supremacy/Sovereignty’ issue).

In the (relatively) rare occasions where no other sources of law are available, the courts will turn to the authoritative works of some of the country’s finest authors, notably that of British jurist and constitutional theorist, Albert Venn Dicey (1835-1922).

Introduction to the Study of the Law of the Constitution: Amazon ...

Such works, whilst admired greatly, are persuasive only and not binding and, in any event, are only referred to when neither statute nor case law is available. Dicey did however formulate the concept of following the ‘rule of law’. This is a difficult notion but broadly refers to the concept whereby Government must obey the law and must not act beyond the powers granted to it. There is expansive case law on this area which also encapsulates Dicey’s three points which, at the time, he felt were of vital importance:- absence of arbitrary power, equality before the law and that the constitution is the result of the ordinary law of the land.

Some excellent examples of the common law here include:-

  • Congreve v Home Office (1976) QB 629
  • Entick v Carrington (1765) 19 State TR 1030
  • Malone v Metropolitan Police Commissioner (1979) Ch. 44
  • Burmah Oil Co Ltd v Lord Advocate (1965) AC 75

For ‘equality before the law’, Dicey suggested that officials (principally Governmental officials) should obey the law like everyone else but this is perhaps flawed given that there are several groups of individuals (Diplomats, the Judiciary, Members of Parliament, the reigning Monarch) who have immunity from prosecution, rightly or wrongly.

This is, classically, the ‘tip of the iceberg’ but is intended merely as an introduction to what can be seen as a fairly verbose area of the law. There is certainly a lot more to cover and I could (and often do) prattle on with ‘law-related’ matters, such is my way and obsession with just about anything to do with the law. But, I’ll show mercy on you and stop there…………for now.

I hope this has afforded some insight into (yet) another area of law, whilst perhaps not as instantly appealing as Criminal Law with all the gore and scandal, is no less important.

More enthralling posts will follow. Fear not. I promise πŸ˜†πŸ˜†πŸ˜†.

Ciaran

2 thoughts on “Constitutional Law – a synopsis

  1. I disagree. I used to teach Administrative Law, and found that it, combined with constitutional law, was boring to learn, but more powerful than most other areas of law. Could be fun too. Always remember Mark Thomas, the comedian walking up to the Ministry of Defence with a tenner in his hand, and demanding they hand over all the info they had on him!

    Like

    1. Hi Lindsay,
      Thanks for following my blog and your recent comment. I’m not entirely sure what it is you disagree with (?) – is it that I have described this area of law as ‘vitally important’..?? Having also taught it for years, I maintain that it is, but can be startling verbose and uninteresting. But that’s the absolute beauty of opinions!!!
      Thanks for participating – feel free to keep your comments coming in any subsequent posts.
      I hope you continue to enjoy them.
      Best wishes,

      Mr O

      Like

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