Lecture 1: intro to the course

 What is a constitution?
- Constitution is a set of rules which could be legal and also non-legal. British constitution
is unwritten and un-codified text.
- A set of the most important rules about the structure and powers of government and of
people’s most basic freedom and rights.
- A combination of legal and non legal (or conventional) rules that currently provide the
framework of government and regulate the behavior of the major political actors (G.
Marshall, ‘The Constitution: Its Theory and Interpretation’)
- Legal sources: Statutes and acts of Parliament.
- Non-legal sources: Conventions. Constitutional conventions are established practices.
- British Constitution-

 How a Bill becomes an Act:

- The basis of the British constitution is Parliamentary sovereignty or supremacy.
Parliament is the legislature which is the primary law makers. Laws are initiated in the
House of Commons.
- Laws are made by the P. Laws are enacted by the HOC, the HOL and the Crown (for
assent). Bills are presented, debated and scrutinized by the Houses and once passed, they
are then presented to the Crown for assent. As soon as the Queen gives royal assent the
bill becomes an act of Parliament.
- The laws or acts passed by the Parliament are primary legislation and are supreme.
- Parliament can make or un-make any law and no authority can challenge an act of
parliament. The parliament can pass any obnoxious law it desires (though it won’t if it
wants to be re-elected). Laws will be valid so long as it has followed the right procedure,
however such laws may not be effective. Supremacy of Parliament is a legal fiction and
fiction can assume anything.

 Legal sovereignty lies with the Parliament.

Political sovereignty rests with the people (as the electorate/people have voted the for the
government, and can opt to have them thrown out)
 Judiciary + Parliament
- Can the judiciary challenge an act of parliament? No, the judiciary is not independent.
And since the judiciary upholds the principles of separation of power, the parliament /
legislature is sovereign.
- The judiciary has expertise to read the law and interpret statutes. An independent
judiciary would be bias free (bias to uphold SOP and that P is the supreme law maker).

 The Parliament:
- The Parliament cannot bind its successors nor can it be bound by its predecessors.
i.e. the current Parliament is supreme- the latest will of Parliament shall prevail. So
today’s Parliament is the sovereign parliament.
- P can make or unmake any laws it desires.

 Doctrine of Implied Repeal and Doctrine of Desuetude:

- Judiciary has this power. E.g. the P legislates and enacts the Housing Act of 2012 and
that it shall prevail and the previous act, the 1919 Housing Act shall be impliedly
repealed.
- However, the 1919 Act will still exist and be valid- this is known as the Doctrine of
Desuetude (is the doctrine of disuse).
- The old 1919 Act should be expressly repealed by the subsequent act of P so that the old
act no longer valid.

 PS + EU
- Albert Van Dicey popularized the Doctrine of Parliamentary Sovereignty.
- It is associated with him and now known as the traditional/orthodox theory.
- When electing to join the EU, all member states, including the UK voluntarily
relinquished their sovereignty to institutions of the EU and the EU law.
- By subscribing to the EU each member state had to have laws that uphold and are in
Harmony with EU laws and if any local laws conflict with EU laws, then they must be
corrected or repealed.
- There is a lot of debate and conflict as to who is supreme.
 The Doctrine of Dualism:
- Where international law and domestic law are two separate entities.

 Monist states:
- Where international law and domestic laws are one.
- EU is a supra natural organization. When member states sign and ratify the treaty,
international law then transgresses into domestic law- this happens under monist states.
- UK passed an act of parliament called [ECA] European countries Act 1972 in which they
voluntarily say that the EU laws are supreme.
- PS however, was still there as EU laws can still be repealed by that or future parliaments
(dualism).
- Laws after 1972 would be passed with consistency to EU laws.
- In 1999 Factortame case said- EU regulations (the most important derived source of
communication) came into direct conflict with domestic law.
UK courts tried to solve the conflict via independent interpretation.
House of Lords sought guidance from the ECJ.
ECJ said if you cannot solve the conflict through interpretation (of your existing acts)
then you must suspend the law since it is in direct conflict.
That law was then suspended.
- This leaves the big question as to what about Parliamentary sovereignty?
- Lord Chancellor was replaced by US style Supreme Court.

 SOP:
- Exists to prevent abuse of powers.
- One institution should not have all the power nor should there be an overlap of powers as
that would lead to inefficiency and arbitrariness.
- Arbitrariness is caused by uncontrollable powers or unaccountable powers.

 Three recurrent themes that you will see in public law:

- PS
- SOP
 - ROL- upholds the judiciary. The part that governs the relationship between the executive
and the judiciary is particularly noteworthy.
- You must mention all three of these together in your exams and interplay between these
three is very interesting and pertinent to this course.

Lecture 2: Government & Constitution of the UK

Brief recap of last class
 UK as a Monarchy:
- UK is often described as a constitutional monarchy. The Crown is the official “head of
state” i.e. a king or queen, who is unelected, “reigns” over the people/ “subjects”.
- In the present world, the constitutional significance of the Queen Elizabeth II, the
reigning monarch, has been significantly diminished as power has shifted to the
Parliament, who is the elected representatives of the people.
- The formal powers “officially” vesting with the Crown and previously enjoyed by the
same are known as Prerogative Powers.
- These PPs are now delegated and largely exercised by the government and PM.

 Unitary and Federal Form of Government:

- Large countries and states with disperse centers of population and large geographical
territories have been compelled for practical reasons to adopt a system of government
where some aspects of decision making are divided between the legislatures of provincial
or state assemblies or parliaments.
Some functions and decision making, such as matters pertaining to defense, national
security, foreign affairs etc are still held and exercised by a national assembly or P. This
is known as a federal system or style of government. E.g. USA has a constitution for the
whole country (the federal constitution) and each of the 51 states have their constitutions
too. ‘Federal’ refers to a system of government in which several states form a unity but
remain independent in internal affairs. The govt of the whole country is referred to as the
‘federal government’.
- Typically in some smaller countries, tend to opt for central form of government which is
common, and has a weaker local government. This is known as unitary type of a
government. E.g. France and Greece.
- The UK style of government has been similar to the unitary model. But the UK is neither
a federation nor a unitary state.
England’s Westminster P has legislated for all of the UK, however, through conventions;
it recognizes the distinctiveness of Scotland.
- Through the introduction of devolution (i.e. the transfer of power from the central state
to regional govts. and legislatures) , political power was granted to elected assemblies in
Wales and Northern Ireland and an elected Scottish Parliament- this has significantly
decreased the unitary aspects of the UK’s government. The UK government is more of a
“multilayered” form of government now.
- Since 1998 (HRA), arrangements in the UK have changed, with increasingly wide
powers ‘devolved’ by the Westminster P to new legislative and executive institutions in
the 3 smaller parts of the country (N. Ireland, Scotland and Wales)

 What is a Constitution:
- It is a text of fundamental importance, setting out how a country is to be governed.
- A constitution simultaneously creates, empowers and limits the institutions that govern a
society.
- The totality of legal rules , whether contained in statutes, secondary legislation, domestic
judicial decisions or binding international instruments or judicial decisions, that affect tge
working of government. (applies to UK as well)
- A list of statutes or instruments that have an entrenched status and can be amended or
repealed only by a special procedure (i.e. constitutional amendments- difficult- rigid)
- Some commentators have expanded Walter Murphy’s point and have commented that the
written text is not perfectly contiguous with the larger constitutional order of a country,
an order that might include “super-statuses”, decisions of judges and agencies, and even
informal institutions. If one is to understand the difference between a country’s written
 constitutions and its larger constitutional order, it is important to distinguish between the
functions of a constitution and its form.1
- The UK does not have a codified, written constitution but it does have a constitutional
system.
- It is the “basic law”. It’s a document that systematically sets out basic rules for how the
country is governed. It’s a set of rules.
 Constitution as a set of Rules:
- A set of rules which governs an organization or a country these rules are legal and non
legal.
- Every organization has defined objectives no matter what the purpose e.g. whether it’s a
club whether it’s a bank, school or a company.
- There have to be defined objectives and powers should especially be well defined.
- A written constitution codifies all the important laws and rules pertaining to the way in
which the state should be governed, typically in a single document. It is considered and
has the status of the highest or supreme form of law.
- Most constitutions have similar fundamental rights, i.e. right to fair trial, freedom of
speech, expression, right to life, etc though there will be variations.
The French and US Constitution have been particularly influential worldwide.
The UK is particularly interesting as it does not have a written, codified constitution and
surprisingly there has not been a single instance where there was national political
consensus where citizens and/or statesmen of the UK have tried to codify the
constitution. There was an attempt in the 17th century when Oliver Cromwell drafted his
“Instrument of Government” when there was no king, when King Charles II was
“restored” after Oliver Cromwell’s death, this document was abandoned.
- A written constitution is considered and has the status of the highest or supreme form
of law.
- The political and legal significance is that the Legislature of a country does not have
unlimited power, BUT it may only legislate within the framework established by the
Constitution. Courts are given the task of adjudicating whether the constitution its
principles rules and laws have been breached or not. If a piece of legislation is in breach
of a constitutional right, then despite that piece of legislation following the right
procedure, will be deemed invalid (since no law can be contrary to the constitution)).
- Under a Written Constitution, there are effective separations of powers since it’s written
and it’s relatively clear and demarcated. Many codified constitutional texts appear to
share similar sections on the executive (president/ PM, monarch, emperor, the cabinet),

1
UCL Constitution Unit website, ‘What is a Constitution?’, Page 4- Murkens 3rd Edition
 the legislature (parliament, senate, chamber of deputies, etc), the judiciary (supreme/
apex court, a constitutional court, etc) and on the fundamental rights of individual
citizens (freedom of speech, expression, fair trial, etc)
- In an unwritten constitution, SOP is not technically there- as what is not defined cannot
be separated.
i.e. powers are not defined so how can they be separated?
There are some overlaps; however, there is a strong system of checks and balances.
- The Constitution or set of rules confirms the legitimacy of the system.
- These rules, besides regulating the internal structure of the organization, will also make
provisions for the manner and form/way in which the organization relates to and interacts
with outer/ external bodies.
- Under a written constitution, people feel a sense of security and value the stability it
provides. However, from time to time, political and social changes may mean the existing
constitutional arrangements have to change and adapt and often result in amendments to
the constitutions. The process of changing or amending the constitution is quite rigid.
Codified constitutions contain rules about the amendment process.
Amendments can be made:- a. but super majority in the legislature (2/3rd of the
representatives approval) or b. having the proposed amendment approved by the people
via a referendum.
- However, its’ relatively simpler and more flexible in the UK, in the absence of a written
constitution.
- There is however, a constitutional system in the UK. Interestingly, radical changes can be
made by ordinary legislation i.e. without the need for a special process of a constitutional
amendment.
- In modern times, a political explanation of UK’s unwritten constitutions is the consensus
between the UK’s 2 main parties (the Conservatives and the Labour) that the “unwritten
and un-codified” constitution serves the UK’s needs well and provides the stability it
needs.
- A constitution is a “Basic Law”. It is a document that systematically sets out basic rules
for how the country is to be governed.
- Codified written constitutions contain rules about the amendment process.
- Codified constitutions: “Typically it means that the Leg of a country does not have
unlimited powers, but instead may legislate only within the framework established by the
constitution. A court, either the Supreme Court or a specialist constitutional court, is
given the task of adjudicating whether the constitution has been breached. If legislation is
contrary to the constitution (e.g. breaches the fundamental constitutional right to freedom
 of speech), the Court rules that the legislation is invalid- even if it has been enacted
through the right/prescribed procedure.”
- Consequences of the lack of a codified constitutional text:
1. There is no national law with a higher status than Acts of P. (i.e. PS).
2. There is no formal or special process for amending the constitutional system
(characterized by extreme flexibility in the BC). Fundamental changes can be acheived
by normal acts of Parliament. E.g. proposals to repeal the HRA 1998, creating a UK
Supreme Court, devolution of powers to new institutions in Scotland, Wales and
N.Ireland in 1998. Advantage is that changes can be achieved quickly, however, it can
also lead to ill considered proposals which may not be supported by the public.
3. The British Constitution has become rather unstable. E.g. a wide range of uncoordinated
reforms were introduced by the Labor party from 1997-2010. These changes were
including devolution which has lead to constant demands for greater powers in Scotland
and Wales- which culminated in a referendum on Scottish independence in September
2014.

- A constitution is prescriptive as well as descriptive.

It defines the manner in which the rules in fact operate and dictate what ought to happen
in a given situation.
- The Constitution is evaluative and judgmental.
It is also evaluative- the accused has acted in a manner that does not conform to the rules
i.e. he has acted in an unconstitutional manner/way.
You must evaluate whether you are following the rules or not.
- The Constitution is a set of rules, generally written, which identifies and regulates the
major institutions of the state and governs the relationship between the state and
individual citizens.
- Constitutional law is concerned with the role and powers of the institutions within the
state and with the relationship between the citizens and the state (institutions).
- The UK’s Constitution is not does not have a codified text.
(I.e. there are rules and rights but it is not written, consolidated and codified the way
Pakistani constitution is).
This is similar to New Zealand and Israel, as neither of these countries have a written
constitution either.

 Key Participants in the UK Constitution:

- Lower Courts  Court of Appeal  Supreme Court

House of Lords
 Cabinet Special Civil
Prime Minister Advisors Service
House of Commons

- The Judicial system is quite orthodox and conventional in the UK. The Supreme Court is
the Apex Court in the appeal system.
- The UK P has some interesting features: the head of Government- the PM must (by
constitutional convention) be a member of the HOC (the lower house of P). The PM
derives most of his/her powers by Prerogative Powers historically given to the Crown.
- The Cabinet is drawn from both the HOL and HOC.
- Civil Servants in the UK are perceived to be politically neutral. That’s why regardless of
which party forms government, they remain on their posts. This is contrary to the USA
where senior civil servants are replaced when a new government is formed.
The neutrality of the civil servant has been questioned. In recent years, a group of
“special” advisers are appointed whose roles come into conflict with those of the civil
servants.

 The Westminster Model:

- The Govt. is largely drawn from the HOC.
- The P is the apex of the system of government and has supreme law making powers,
unchecked by a constitutional court.
- The ministers in the Govt. are subject to checks via the systems of “accountability”.
(Technically yes, but effectively, not really…)
- Relationship b/w Govt. and P:
Theoretically, the Govt. is held in check and essentially controlled (to some degree) by P,
more specifically, HOC.
1. e.g. the extent to which Acts of P can be passed w/o support of the Govt. (i.e. by
the non-ministers). Parliamentary procedures provide few opportunities for the
“backbench” non MPs and HOL to introduce Private Members’ Bills on topics
of their choice.
Theoretically this is a great way of slightly unpopular topics to be raised and
perhaps turned into law.
However, in reality, very few Pvt. Members’ Bills are enacted.
2. Another method, in which the Govt. Departments and Ministers can be held in
check by P, is the use of departmental Select Committees.
Select Committees are made of backbench MPs and the chair of the committee is
selected via a secret ballot from the HOC- thus the Govt. cannot influence the
MPs choice of the Chair.
- Lack of Constraint by a Constitutional Court:
 UK has a Supreme Court, previously the HOL, but unlike its US counterpart, the UK SC
is not the overt guardian of the constitution
The ECJ has enforced EU law in the UK, the EC of HR has also made considerable
impacts i.e. Hirst vs. UK
- Delegated Legislation:
Makes up a large part of UK’s laws (in form of rules, regulations, orders, etc- basically
statutory instruments).
Delegated legislation esp. those of minimum public interest do not necessarily pass
through the parliamentary stages that Acts of Parliaments go through (e.g. minor road
traffic rules, environmental regulations, etc- to be quicker, P doesn’t have time, P is not
always in session sometimes things are urgent, P trusts and delegates the power).
These statutory instruments used for delegated legislations are created by the
executive/ministers (and usually drafted by their civil servants)- they have been given this
law-making power by an Act of P- and Acts of P are supreme and nobody can challenge
and Act of P.
Therefore, P’s scrutiny and checks on delegated legislation is minimal. Though having
said that, P does have powers i.e.:
1. Some statutory instruments must be approved by both HOL and HOC under the
affirmative procedure.
2. Others may be annulled by a resolution of either House by the negative
procedure.
However, 2/3rd are not examined by MP’s in HOC and/or HOL at all. So in essence, they
have been given a free reign and 1 &2 above are more like procedural ways in which they
can accept or decline delegated legislation i.e. whether or not P wants to ratify it.
- Challenges and changes to the Westminster Model:
EU: in the EU, majority voting system is exercised by Member States, which is a
challenge for the Westminster model which has a requirement of unanimity, in some
areas of policy.
There is a shift towards the expectation of increasing Ministerial Responsibility and
Accountability.
New innovations: debates on topics selected by Backbench MPs. Another e.g. is Draft
Bills.
Direct Democracy- law should be made by the people themselves- is that practical
though? Are the equipped and specialist to do so? What about E-petitions?
Referendums-

 The Concept/ Doctrine of Constitutionalism:

- This doctrine governs the legitimacy of the government and as it suggests: Limitations of
power, SOP and responsible ministerial government
a) That the exercise of power by the government is within the legal limits of the power
conferred to it by the Parliament (those who have the power i.e. Executive) this is the concept
of intravires.
- Intravires is staying within legal bounds of the powers and authority conferred to a body
or someone
- The exercise of executive power is accountable to the law (this is the limitation of
delegated power) via JR, this upholds ROL.
This is done to reduce arbitrariness and to uphold ROL.
- JR
JR is a judicial check (administrative law) on the government to curb down arbitrariness
and uphold ROL.
- There are also Parliamentary checks i.e. conventions.
However, breach of a convention is not unlawful therefore it is an inadequate check.
- If any law conflicts with the Constitution, then the judiciary can review it.
- However, in BC due to PS and SOP, primary legislature cannot be reviewed (i.e. laws
which have been correctly passed by P).
- Nevertheless, secondary and delegated legislation (ministerial- prerogative) can be
reviewed.

b) Powers conferred on institutions within a state whether legislative, executive or judicial

should be sufficiently dispersed between these institutions and the institutions falling within
them- so as to avoid the abuse of power.
- That means if there is not a strict SOP then there should at least be a system of checks
and balances to work in a way as SOP.

c) That the government in formulating policy and legislature and legitimating the policy are
all accountable to the electorate- on whose trust their power is held/ retained- this is the
doctrine of ministerial responsibility.
- Ministerial responsibility can be individual and collective.

 Summary of the Parliament:

- Constitutionalism suggests: Limitations of power, SOP and responsible ministerial
government.
- The Government/ executive (winning party and its cabinet ministers) run the country and
are responsible for developing it and implementing laws and policies.
- The P is the highest legislative authority in the UK.
 It is responsible for deciding work of the government (executive) and approving,
examining and debating new laws- it is also known as the legislature.
(All members of parliament)
- Forming a government- the political party that wins most seats- their leader becomes the
PM and appoints ministers and the cabinet who often work in a government.
- Ministers are not exclusively from HOC. They are chosen from the HOL as well as HOC.
- Ministers must respond regularly and answer questions of all members of P.
- Is the P and government the same thing?
No, they are two different things.
Most people often confused them but it is pertinent to note that not every Member of P is
in the government ie not every member is a minister. The government is led by the Prime
Minister who appoints ministers.