Introduction to Constitution

1. TOPIC1:
INTRODUCTION TO THE CONSTITUTION AND SOURCES OF
THE CONSTITUTION

2. LEARNING OUTCOMES
By the end of this lecture, you would be able to understand:
 The Definition of Constitutional Law
 The Definition of Constitution
 The Concept of Constitutionalism
 The Forms of Constitutions
 The Characteristics of Britain’s Unwritten Constitution
 The Sources of the Constitution of the UK

3. CONSTITUTIONAL &
ADMINISTRATIVE LAW

4. Definition of
“constitutional law”
• Regulating the role and powers of
the institutions within the state and
the relationship between the citizen
and the state
• Reflects the moral and political
values of people it governs Relationship

5. Definition of
“constitutional
law”
• A rules which directly or indirectly
affect the distribution or exercise of
the sovereign power. So much of the
law as relates to the designation and
form of the legislature, the rights and
functions of the several parts of the
legislative body, the construction,
office and jurisdiction of courts of
justice.
From, Osborn’s Concise Law Dictionary

6. Definition of
“constitutional
law”
• Constitutional Law is a branch of public
law containing so much of the political
constitution as is laid down in positive
legal rules, and as including such subjects
as the formation, powers, and privileges
of the legislature, the executive functions
and powers of the Crown, the existence
and composition of the judicial
establishment, the legal position of the
clergy, the army, the navy, and the
various departments of the public service
in relation to the Crown and the
executive and the legislatures and the
machinery of local government.
From Encyclopaedia of the Laws of England

7. What is a Constitution?
• Prof KC Wheare defines
constitution as,
• “the whole system of
government of a country,
the collection of rules
which establish and
regulate or govern the
government”

8. What is a Constitution?
• Thomas Paine’s definition,
• “A constitution is not the act
of a government, but of a
people constituting a
government, and a
government without a
constitution is power
without right…A constitution
is a thing antecedent to a
government; and a
government is only the
creature of a constitution”

9. What is a Constitution?
Bolingbroke defined the
constitution as:
“That assemblage of laws,
institutions and customs …
that compose the general
system, according to which
the community has agreed
to be governed.”

10. The Concept of Constitutionalism
• The doctrine (ideas and theories) of Constitutionalism suggest the following:
• that the exercise of power be within the legal limits conferred by parliament on
those with power – the concept of intra vires – and that those who exercise power
are accountable to law;
• the exercise of power – irrespective of legal authority – must conform to the notion
of respect for the individual and the individual citizen’s rights;
• that the powers conferred on institutions within a state – whether legislative,
executive or judicial – be sufficiently dispersed (isolated) between the various
institutions so as to avoid the abuse of power; and
• that the government, in formulating policy, and the legislature, in legitimating that
policy, are accountable to the electorate on whose trust power is held.

11. Constitution
provides
legitimacy
Identifying the
personnel,
functions and
powers Regulating
between
executive,
judiciary and
legislative
Limited power
Behavior of
personnel
Values and
principles i.e.
Rule of Law and
Separation of
Powers
Amendment
Election –
democracy
Relationship
between State
and Citizen
Dispute
resolution

12. THE FORMS OF
CONSTITUTION
WRITTEN
CONSTITUTION
UNWRITTEN
CONSTITUTION

13. The Forms of Constitutions :
Written Constitutions
• A written constitution
is one contained
within a single
document or a series
of documents, with or
without
amendments,
defining the basic
rules of the state.

14. The Forms of
Constitutions:
The main feature that characterizes
all states with written constitution is
that there has been a clear historical
break with a previously pertaining
constitutional arrangement, thus
providing the opportunity for a fresh
constitutional start.
Thus, the absence of any such break
in continuity in British history from
1066 to current times, more than any
other factor, explains the mainly
unwritten nature of the UK’s
constitution.

15. UK’s CONSTITUTION:
• Unwritten, resting mainly on custom and convention;
• Written, drawn up in legal form;
• Flexible, capable of being altered by ordinary legislative act;
• Rigid, capable of being altered only by special procedure.
A constitution may be
The British constitution is unwritten and flexible

16. UK’s UNWRITTEN CONSTITUTION
• Not codified as a document but defined by
custom and precedent as embodied in
statutes and judicial decisions
• UK ‘s unwritten constitution comprises of:
• Statute Law
• Delegated Legislations
• Common Law
• Conventions
• Authoritative works
• Royal Prerogative
• International Treaties

17. SOURCES OF
CONSTITUTION

18. Sources
Statute Law
• Delegated
Legislations
Common Law
Conventions
Authoritative
works
Royal
Prerogative
International
Treaties

19. STATUTE LAW
• An Act of Parliament
• A Bill that has been approved by both House –
House of Commons and House of Lords
What is statute law?
• Arguably more important than ordinary statute law
• Not explicitly set out as constitutional statute
What is constitutional statute law?

20. House of Commons Disqualifications Act 1975
• Sets out which people cannot be Members of Parliament (judges, civil servants,
police etc)
Human Rights Act 1998
• Incorporate the European Convention on Human Rights
• Unlawful for any public sector body to act in a way contravenes the Convention
Freedom of Information Act 2001
• Grants public the right to access information held by the public sector
Constitutional and Reform Act 2005
• Created the Judicial Appointment Commission to reduce politicisation of
judicial appointments
Succession to the Crown Act 2013
• The eldest child regardless of gender can be in line to the throne

21. EUROPEAN UNION (WITHDRAWAL)
ACT 2018
Following agreement by both
Houses on the text of the
“Great Repeal Bill’ it received
Royal Assent on 26 June. The
Bill is now an Act of
Parliament (law).
A Bill to repeal the European
Communities Act 1972 and
make other provision in
connection with the
withdrawal of the United
Kingdom from the EU
All EU law will be
automatically transferred to
UK law to prevent “legal
black hole”
European Communities Act
1972 repealed.

22. DELEGATED
LEGISLATION
 Legislation made by some person or body under authority given to that
person or body by Act of Parliament - such an Act is termed an
enabling or parent Act.
 Examples of delegated legislation are statutory orders, statutory
instruments and bylaws.
 Arising out of the primary legislation (or Statute Law) is a vast amount
of subordinate or secondary legislation known as delegated legislation.
These are laws made at a local level, often by Ministers, for which
authority is given by the parent or enabling Act.
 The need for delegated legislation arises because it would be
impossible for the drafters of the primary legislation to envisage all the
circumstances that might arise under the parent Act and for which
further legislative provision would be necessary. As such, the use of
delegated legislation provides significant flexibility to keep the law
current and applicable to specific circumstances
 Local Government Act 1972 s.235
 Power of councils to make byelaws for good rule and government
and suppression of nuisances.
 (1)The council of a district F1... and the council of a London
borough may make byelaws for the good rule and government of
the whole or any part of the district F2... or borough, as the case
may be, and for the prevention and suppression of nuisances
therein.

23. COMMON
LAW

24. COMMON
LAW
R v Secretary of State for the Home
Department ex parte Simms
• A convicted murderer, Simms, serving a life
sentence but protesting innocence, sought
help from a journalist who visited him
several times in prison to discuss an appeal.
The Home Secretary introduced a blanket
requirement that journalists should sigh an
undertaking confirming that none of their
interview materials would be used in a
professional capacity.
• The House of Lords allowed Simms appeal.
The free speech at issue here was very
specific and valuable, given his incarceration
whilst maintaining innocence. Simms really
needed face to face discussion and the
policy was ultra vires and curtailed his
fundamental rights. It was this blanket
application that led to illegality rather than
the rules themselves

25. COMMON
LAW
Christie v. Leachinsky [1947] AC 573
•The House of Lords held that an ‘arrested man is entitled to be told
what is the act for which he is arrested’. This rule was codified in
s.28(3) of the Police and Criminal Evidence Act 1984.
Case of Proclamations (1611) 12 Co Rep 74:
•King James I was short of money and issued proclamation declaring
it to be gainst the law to build new houses in London or to make
wheat starch. His aim to levy fines from offenders
•On the question of whether the King could create new law without
Parliament, Coke CJ held:
‘the King by his proclamation or other ways, cannot change any part of the
common law or statute law … also the King cannot create any offence by his
prohibition or proclamation which was not an offence before.’

26. ROYAL
PREROGATIVE
Blackstone:
... that special pre-eminence which the
King hath over and above all persons,
and out of the ordinary course of the
common law… And…only applied to
those rights and capacities which the
King enjoys in contradistinction to
others.

27. CONSTITUTIONAL CONVENTIONS

28. CONVENTIONS
AV Dicey:
…conventions, understandings, habits or practices which, though they may
regulate the… conduct of the several members of the sovereign power…
are not in reality laws at all since they are not enforced by the courts.

29. CONSTITUTIONAL CONVENTIONS
Examples:
• The Queen will appoint as Prime Minister the
leader of the political party with the majority
of seats in the House of Commons;
• The Prime Minister must be a member of the
House of Commons;
• Judges shall not play an active part in political
life;

30. Authoritative works
• Works written by experts describing how a political system is run; they are
not legally binding but are taken as significant guides.
• Examples;
• Walter Bagehot’s “The English Constitution” 1867
• A.V. Dicey’s “An Introduction to the study of the law of the Constitution”
1885

31. Treaties
Formal agreements with other countries, usually ratified by
Parliament.

33. What is a Constitution?
• Prof KC Wheare defines constitution
as,
• “the whole system of government of a
country, the collection of rules which
establish and regulate or govern the
government”

34. What is a Constitution?
• Thomas Paine’s definition,
• “A constitution is not the act of a
government, but of a people constituting a
government, and a government without a
constitution is power without right…A
constitution is a thing antecedent to a
government; and a government is only the
creature of a constitution”

35. What is a Constitution?
Bolingbroke defined the
constitution as:
“That assemblage of laws,
institutions and customs … that
compose the general system,
according to which the
community has agreed to be
governed.”

36. NextTopic:Devolution