The study of constitutional law is about the legal system of the states. It is an investigation of constitutional principles as well as constitutional procedures. It mainly focuses on constitutional law and the British constitution in the current context. Constitutional law is a vast topic; it's multi-faceted, and above all else, it's constantly changing and evolving. Things that seem to be insignificant, like the length of time required to bring an amendment to the statute books or what MPs or ministers do in private, may be constitutionally significant. This article will focus on philosophical, political, and legal aspects to help students understand how changing the constitution is.
Suppose the constitution of the United Kingdom is democratic in this scenario. Consequently, consideration must be made to the extent to which it conforms to the democratic model and, as well, to think about the best characteristics of a constitution deemed to be democratic. The peculiarities that are inherent in this particular constitution. In this case, the UK Constitution will be studied and analysed because the power of Parliament is one of the essential parts.
With the increasing European integration and the possibility of a European Constitution, The legal impact of the law upon the United Kingdom constitution becomes a crucial aspect. The constitution of a state should be capable of defining the limits of state power and imposing legal limitations on the government. The notions regarding the principle of the rule of law and power separation are two examples of limitations. A government that is not limited is not likely to be genuinely democratic.
In every state, there's a need to have public servants. This includes legislators, judges and police officers, administrators, and teachers. These officials need to exercise adequate powers to carry out their jobs and for adequate public accountability to their responsibilities. Certain of these authorities and responsibilities will be legal, and others are political, but both should be considered to complement one another throughout the constitution. A careful study and analysis are given these questions. Additionally, the relationship between these public entities and citizens will be examined, specifically concerning the Human Rights Act 1998.
Before considering the various issues relating to constitutions it may be helpful to outline some basic terminology/concepts.
The Montevideo Convention on Rights and Duties of States 1933, Article 1 defines a state in the following manner:
A subject under international law must have the following characteristics:
a permanent population;
a defined territory;
a government; and
a capacity to enter into relations with other states.
The UN accepted this definition in recognition of the rise of "new" nation-states.
The functions of a state
The functions of a state can generally be divided into three elements:
The body (or bodies) enacts new legislation and modifies, revokes, or changes current legislation. This function is performed in the United Kingdom by the Monarch in Parliament, which consists of the Monarch and two chambers—the House of Commons and the House of Lords.
Legislatures are divided into two primary categories:
1. Bicameral: a two-chamber system, e.g., the UK.
2. Unicameral: a one-chamber system, e.g., New Zealand.
The body (or bodies) creates and implements policies within the framework of the law. In the United Kingdom, the executive is the current government, including the Prime Minister and Cabinet, the Civil Service, executive departments and agencies, and other public entities.
The body is accountable for enforcing the law and the resolution of conflicts between the subjects and the state. In the UK, it represents all bench members, including recorders and the Lord of Appeal.
What is a Constitution?
The definition of a constitution isn't as straightforward as it may seem. There isn't a consensus on the goal of a constitution. There is also no consensus on the shape it should take and what its contents should contain.
Lord Bolingbroke described a constitution as: … that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to particular fixed objects of public good, that compose the general system according to which the community hath agreed to be governed. A Dissertation Upon Parties (1841)
Finer, a political scientist and jurist, adopted a narrower definition; for him, constitutions are those: ...codes of regulations that aim to control the distribution of functions, powers, and tasks among the various agencies and offices of government, as well as to define their interactions with the public. Five Constitutions (1979)
Additionally, a 'constitution' is usually defined as a document or series of documents: … having a special legal sanctity which sets out the framework and the principal functions of the organs of State and declares the principles governing the operations of those organs. The United States Constitution of 1787.
A constitution's function or purpose
From the definitions mentioned above, the role and purpose of a constitution may be determined. The purpose of constitutions is to guarantee power distribution between the various institutions that comprise an entire state and between the state's citizens and the state. It could also be said that constitutions exist to ensure that democratic principles manage citizens and that the people who govern are accountable for their decisions. This is known as constitutionalism.
The constitutional principle generally suggests
The restriction of power is that power exercise has to be within legal limits, and the individuals who use it are accountable to the law. Furthermore, exercising power has to comply with notions of respect for individual rights and rights of individuals.
The separation of powers: power is distributed to prevent abuse of power.
The concept of accountable and responsible government means that the government and lawmakers are accountable to the people. The legislature must answer to the citizens (electorate) on whose trust the trust power is based.
While constitutions can serve the same purpose, the substance of a constitution could differ significantly. Like the United States and the German Constitution, some contain declarations on fundamental rights. However, some countries can recognise rights by other means than documents that outline the fundamental rights of human beings. This was the situation in the UK before the enactment of the Human Rights Act 1998.
A classification for constitutions
Sir Kenneth Where provided the most effective way to classify constitutions in Modern Constitutions (OUP 1951). He cited six characteristics:
In the past, a written constitution was usually connected to one formulated in one document. In the case of America, the US Constitution provides one of the clearest examples of a constitution. Some commentators like FF Ridley ('There is no British Constitution: a dangerous scenario of the Emperor's clothing' (1988) 41 Parl Aff 340) A single, well-written writing is the primary characteristic of States with an explicit Constitution.
Contrary to this, in contrast, the United Kingdom does not have an 'old-fashioned' constitution. It has changed over the years and, as a consequence, is not found in anyone or a small set of documents. In the case of de Tocqueville, writing in the 19th century, the absence of a constitution written down caused him to say that there wasn't a Constitution in England.
But, as per the definitions mentioned earlier, the UK has Constitutional law. It is a body of laws, written and non-written, that determines the roles of the nation. Sir Ivor Jennings summarizes the situation in his article:
A constitution is an official document; the United Kingdom does not have one...However, the constitution provides the guidelines for the functioning and establishment of government institutions. And evidently, Great Britain has such institutions and rules. The phrase "British constitution" can refer to these rules. Dicey, The Law of the Constitution
So, a more critical difference can be made between constitutions that are written down in a single document (like the US) and those that are not written down and are found in different places (like the UK).
A rigid, firmly enshrined constitution is a specific procedure that only amends one in that law. In this way, the law of constitutionality is more prestigious than any other form of law. In general, constitutions are contained in a single document (The Constitution of Singapore provides an exception to this; it's written but not in force). The US Constitution is an excellent example of a well-written and rigid constitution. A substantial majority of Congress (Legislature) will be needed to pass amending the constitution. The amendment is then subject to a 2/3rd ratification from every state. However, an open constitution, where any law, even constitutional provisions, can be changed frequently.
In the UK, Parliament is the highest legislative body. It can adopt amendments, repeal, or amends any law through an accessible majority. For instance, the Human Rights Act 1998, for instance, can be amended or repealed in the same way as in the Incitement to Mutiny Act 1797. There are no unique mechanisms to alter the constitutional law for the UK. This is also known as the principle of the supremacy of Parliament sovereignty.
The importance of adaptability should not be over emphasised. There are many legal and political limitations on what the legislature may and cannot accomplish.
In a supreme constitution, the legislative authority of the ruling body is unrestricted. In contrast, when the governing body's powers are constrained by higher legislation, the constitution is considered subservient. For instance, in a federal state, national issues may limit a regional government's legislative authority (see below). The same held for former colonies when Westminster restricted legislative authority.
The Westminster Parliament is the ultimate law making body in the United Kingdom. The United Kingdom's participation in the European Union has produced challenges comparable to former colonial powers.
A unitary constitution has the entire executive and legal power vested in the state's central institutions. In the UK, power is controlled centrally within Westminster and Whitehall. A portion of the powers devolved to regional bodies in the UK is transferred to regional organisations such as municipal councils and the London Assembly. Since 1998, some powers have been transferred to Scotland, Northern Ireland, and Wales. These regions have limited powers. Acts of the Westminster Parliament, like the Government of Wales Act 1998 and the Scotland Act 1998, give them the power to do what they do.
The power to revoke is in the hands of the Westminster parliament. In essence, they are subordinate to the Westminster Parliament.
However, power is distributed between the federal or national government and the state or regional authorities under the constitution of the United States. The rules are generally outlined in the constitution, like the German Constitution and the US Constitution. Like security for the state, some powers might be reserved for the central government. However, states possess significant power to regulate and manage their affairs.
One of the fundamentals of constitutional law is that power must be distributed to prevent misuse of power from those under the power of control (the concept of the separation of power). A separate constitution refers to how a constitution is drafted and conforms to the theory of power separation.
The basic idea stipulates that distinct bodies can best fulfil the various duties of the state. A slightly altered version includes the idea that each body serves as a 'check and balance over the other. The US Constitution is a clear example of a constitution that is separated. The power is distributed between Congress, the Judiciary (Supreme Court), and the President. Each has its duties and has some form of control or oversight against the others. The other is a totalitarian or pure monarchical system where only one person holds power; the constitution is a fusion.
The UK isn't easy to categorize. Many commentators believe that the UK constitution is joined because of the substantial overlap between Parliament and the Government (the Government is constituted by the majority of the parties, which the Parliament represents). Others argue that the UK is an unofficial separation; there are distinct and identifiable institutions that perform executive, legislative and judicial functions. There is overlap, however, not to the extent suggested by certain. The UK's idea is a fusion country would appear to be an overly simplistic classification.
A monarchical constitutional monarchy refers to one where the heads of state are the monarchs. Most states under this class have adopted "constitutional" monarchies where the monarch has a symbolic role but with limited power, such as Sweden, the UK, Spain, and Sweden. In the UK, Queen Elizabeth II, the Monarch of the United Kingdom, is the state head, and all government actions are carried out under the Crown's authority. Queen Elizabeth II has a lot of legal authority but only a small amount of usable power. The Executive, on behalf of the Crown, is a significant source of the Crown's legally enforceable authority.
For instance, a republican constitution states that the chief of state is usually chosen by the voters, for instance, the president or chancellor. The power level the leaders are granted is contingent on the constitution's own rules. The most notable examples are Germany, France, and the USA.
The categories above are just some of the methods employed to categorise constitutions. Be aware of the techniques used by, among others, De Smith and Hood-Phillips.
The distinctive features of the British constitution
As far as determining whether the UK has a constitution, its uncodified or unwritten character has proved to be the most troublesome. It's feasible to identify specific traits that combine to produce the UK's constitution by looking at the substance of structural and governmental arrangements in the UK and considering what's been said thus far.