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Learning Objectives:
In this chapter, chapter, you should aim to understand: • Nature and characteristics of the British Constitution differs from other constitutions • How the British Constitution differs •
The Sources of the Constitution
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The tructure of the British Government
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http://www.Parliament.uk
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http://www.thetimes.co.uk/tto/public/law/
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http://www.ucl.ac.uk/constitution-unit/
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http://www.Parliament.uk
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http://www.thetimes.co.uk/tto/public/law/
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http://www.ucl.ac.uk/constitution-unit/
AN OVERVIEW 1. What hat is is a Const nstitu itution tion? ? 2. Does the UK have a Constitution? 3. If so, what are its Sources; and 4. What are its characteristics? ----------------------------------------------------------------------- Also: Structure of the British Government Constitutional Reforms
WHAT IS A CONSTITUTION? DEFINITIONS: •
Turpin:
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K.C Wheare:
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Marshall and Moodie:
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Thomas Paine:
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Hood Philips:
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TURPIN: The constitution is “a body of rules, conventions and practices which regulate or qualify the organisation and operation of government in the UK.”
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-K.C WHEARE: “... the whole system of government of a country, the collection of rules which establish and regulate or govern the government. These rules are partly legal and partly non-legal……”
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Marshall and Moodie : When we talk of constitutional law, we are concerned with the rules that bind those people that co-operate and give effect to the constitution. This is normally referred to as government. Thomas Paine : “… a constitution is not the act of the government but of the people constituting the government and a government without a constitution is a power without a right… a government is only the creature of the constitution…”
O’Hood Phillips - “The word „constitution‟ is used in two different senses, the The constitution of a state in the abstract sense is the system of laws, customs and conventions which define the composition and powers of organs of the state, and regulate the relations of the various state organs, to one another and to the private citizen. A „constitution‟ in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained. A country, such as our own, which has no „written‟ constitution … has no constitution in the concrete sense of the word….”
Found in a single document - „Federal Constitution of Malaysia‟. It is divided into 16 parts and 13 Schedules. There are 230 articles in the 16 parts. Notable articles: Article 8 (1) provides that all persons are equal before the law and entitled to its equal protection. Article 8 (2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth in any law
The UK does not have a single/set of documents To find its constitution one must look into both written and unwritten sources: [Acts of Parliament; Judgments of court ; Constitutional conventions ; Royal prerogative etc.]
NOTE: ANCIENT CONSTITUTIONS & MODERN CONSTITUTION
SOURCES
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There are legal and non- legal sources which taken as a whole form a body of constitutional law which widely referred to as an unwritten constitution…
LEGAL SOURCES 1. 2. 3. 4. 5. 6. 7. 9. 10. 11.
Magna Carta 1215 Petition of Right 1628 Bill of Rights 1689 Act of Settlement 1700/01 Treaty of Union 1706/07 Parliament Acts 1911/1949 Statute of Westminster 1931 Representation of the People Act 1983 European Communities Act 1972 Human Rights Act 1998
European Union law [ECA 1972]
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Directives;
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Regulations;
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Decisions.
Human Rights Act 1998 •
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The HRA 1998 incorporates the rights enshrined in the European Convention of Human Rights into domestic law.
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Entick v Carrington (1765)
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Liversidge v Anderson (1942)
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Burmah Oil v Lord Advocate [1965] AC 75
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Stockdale v Hansard (1839) 9 Ad & E 1
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Conway v Rimmer [1968] AC 910
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R v Sec of State for Transport ex parte Factortame (No 2) [1991]
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GCHQ
NON-LEGAL SOURCES 1. Authoritative literature:
2. Conventions
3. Law and Custom of Parliament
COMPARE WITH MALAYSIA In Malaysia, in addition to the non-legal sources, the Written Law consists of: • • • • •
Federal Constitution State Constitution Legislation Subsidiary legislation and Syariah Law
Unwritten Verses Written [Uncodified Verses Codified] Q: Differentiate between a written and an unwritten constitution. Which in your opinion is better and why?
FLEXIBLE AND RIGID -Flexible Constitution (British Constitution):
-Rigid Constitution (Malaysian Constitution):
Question: Should the Constitution be amended easily?
SUPREME AND SUBORDINATE Supreme : A supreme constitution is not subject to any external superior force Subordinate: The constitution is drafted and introduced in a country by an external supreme power and thus can be amended or repealed by that external power Question: After the UK’s membership to the EU,
where does sovereignty lie?
UNITARY AND FEDERAL UNITARY : [Centralised power so in UK at Westminster]
FEDERAL: [Decentralised power]
Note: Devolution of powers in the UK. Read Barnett ; Read uploaded article
PARLIAMENTARY AND PRESIDENTIAL PARLIAMENTARY: There is fusion between the Legislature and Executive
PRESIDENTIAL: There is no fusion between the Legislature and Executive
SEPARATED POWERS AND FUSED POWERS
[UK exhibits mainly but not complete SOP]
EXECUTIVE
JUDICIARY
LEGISLATURE
MONARCHICAL AND REPUBLICAN MONARCHICAL: •
Monarchy remains with the Queen in the UK
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She acts as the Head of State (figurehead)
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Constitutional or limited monarch
REPUBLICAN: •
A republic is a form of government in which the head of state is not a monarch and the people (or at least a part of its people) have an impact on its government. The word 'republic' is derived from the Latin phrase res publica which can be translated as "a public affair".
QUEEN ELIZABETH II
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Reigned for over 60 years Currently second longest for a British monarch; only Queen Victoria has reigned longer (63 years)
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Constitutional monarch of 16 sovereign states
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Head of the 54-member Commonwealth of Nations
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She is Supreme Governor of the Church of England
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Carries title Defender of the Faith as part of full title.
QUESTION •
Can you think of 5 reasons for supporting the existence of a monarch in a constitutional monarchy?
PARLIAMENTARY SUPRMACY AND CONSTITUTIONAL SUPREMACY SUPREME PARLIAMENT: In the absence of a written constitution, Parliament assumes the highest authority - A.V Dicey. SUPREME CONSTITUTION: The Written Constitution is the supreme law of the land Article 4(1) of the constitutional of Malaysia states that : “This constitution is the supreme law of the federation and any law passed after merdeka day which is inconsistent with this constitution shall... be void.”
UNICAMERAL AND BICAMERAL
UNICAMERAL PARLIAMENT:
BICAMERAL PARLIAMENT:
CONSTITUTIONAL REFORMS Barnett
Major changes after the 1997 General Elections: DEVOLUTION HOUSE OF LORDS HUMAN RIGHTS ACT 1998 CONSTITUTIONAL REFORM ACT 2005 CONSTITUTIONAL REFORM AND GOVERNMENT ACT 2010 •
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FURTHER REFORMS: Plans by the COALITION GOVERNMENT formed in 2010
