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1. The meaning of a constitution  

This chapter begins with a discussion of the meaning of the term ‘constitution’. It distinguishes between a written and an unwritten constitution and outlines the special procedures for amending written constitutions. Constitutions are frequently classified according to their characteristics, and several of the more common classifications are explained in this chapter. The chapter also considers: the value of written constitutions, the unwritten nature of the UK constitution, whether the UK has a constitution, sources of the UK constitution, and the changing nature of the UK constitution. It concludes by addressing the question of whether the UK should have a written constitution.

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1. The UK Constitution  

This chapter provides an introduction to the UK Constitution and sets out a foundation upon which discussions in later chapters further develop. It starts by exploring definitions of constitutions, placing the unique UK system within commonly accepted themes and characteristics. It then moves to explain the nature and form of the UK Constitution and some of the sources of which it is constructed, as well as exploring some of the more theoretical considerations as regards its character, including the way in which it is legitimised. The final section considers academic questions concerning whether or not the UK can be said to have a constitution, including discussion of the case for and against a codified system.

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9. Devolution  

Devolution refers to the decentralization of power from central institutions in London to regional institutions exercising executive and legislative authority in Scotland, Wales, and Northern Ireland. This chapter explores the principle of devolution, both in terms of its historical development and its constitutional importance. It discusses recent issues and debates relevant to the role that it continues to play in the UK Constitution through the established institutions in Scotland, Wales, and Northern Ireland. All this is tied together in consideration of a problem scenario which encourages discussion of the powers of the devolved institutions and their relationship with centralized authority at Westminster.

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3. Rule of law  

This chapter begins with a discussion of the meaning of the rule of law, one of the fundamental doctrines or principles of the UK constitution. The concept is by no means straightforward, and opinions vary as to the principles or values which underpin the doctrine. The chapter distinguishes between formal and substantive meanings of the rule of law. It discusses principles encompassed by the rule of law. These include that laws should be prospective, laws should be open and clear, and that there should be natural justice, access to the courts, and equality before the law. The chapter concludes with an assessment of the contemporary significance of the rule of law.

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Cover Public Law

1. Public Law—An Introduction  

This chapter provides an overview of public law, introducing the key institutions, principles, and practices that characterise the constitutional arrangements of the United Kingdom.

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3. Themes, Sources, and Principles  

This chapter discusses the UK’s constitutional arrangements, and in particular, four important issues concerning the UK constitution, of which it is necessary to be aware at the outset. First, it sets out the three key themes that emerge from the study of contemporary UK public law, and second, examines the sources of the UK constitution. Third, the chapter addresses a number of principles that occupy a central role in UK public law, before finally considering whether the UK should adopt a written, or codified, constitution.

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2. The institutions of government and the separation of powers  

This chapter explores the key institutions—the legislature, the executive, and the judiciary—and considers the relevance of the principle of the separation of powers in respect of the UK Constitution. It begins with a discussion of the functions fulfilled by these institutions, including an examination of their structure and key roles, allowing fuller exploration of the separation of powers doctrine in the UK Constitution. The chapter identifies a common distinction drawn between what is known as the pure and partial separation of powers: The former favours total separation, while the latter allows a degree of overlap to the point of ensuring a system of checks and balances. Application of this distinction enables broader exploration of the UK’s application of the separation of powers doctrine.

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3. The rule of law  

This chapter starts by defining the rule of law, explaining its importance, and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the writing of Dicey, whose seminal text, An Introduction to the Study of the Law of the Constitution (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern-day authorities.

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12. Judicial Review—An Introduction  

This chapter provides an introduction to the concept of judicial review. It discusses what judicial review is and is not about; the nature of administrative law; the relation of judicial review to three key themes crucial to understanding the modern British constitution—accountability, political and legal constitutionalism, and demarcation disputes in the multilayered constitution; and the constitutional basis of judicial review.

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2. Constitutions and Constitutional Law  

This chapter examines the specific functions and characteristics of constitutions in general terms—thinking of what the constitutions of Western democratic countries are typically like—rather than with particular reference to the UK, and then considers how the UK’s constitutional arrangements measure up. This is followed by three case studies that illustrate how the different topics considered in this book relate to one another, and which also provide an overview of the type—and importance—of the issues with which public law is concerned.

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Cover Complete Public Law

12. Responsible Government and Constitutional Conventions  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the nature and extent of constitutional conventions, which are political rules that are binding upon those to whom they apply. They apply to the relationships between the Crown, Parliament, the judiciary, the civil service, and the executive, and play a key role in limiting the powers granted to institutions of government by unwritten rules or sources. Constitutional conventions also regulate key parts of the relationship between the institutions of government. The doctrine of ministerial responsibility is one of the most important examples of constitutional conventions regulating the behaviour of the executive. There are two main branches of ministerial responsibility. One is individual ministerial responsibility—that is, a minister’s obligation to account to Parliament for his or her words and actions and for those of his or her civil servants. The second branch of ministerial responsibility is collective ministerial responsibility. Amongst other things, collective ministerial responsibility prescribes that decisions reached by the Cabinet or other ministerial committees are binding on all members of the government, regardless of whether or not the individual ministers agree with them.

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3. The features and sources of the UK constitution  

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

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Cover Public Law Concentrate

1. Introduction to constitutional law  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the definition of constitutional law and the characteristics of the British Constitution. Constitutional law looks at a body of legal rules and political arrangements concerning the government of a country. A constitution may take the form of a document or set of documents which declare that a country and its chosen form of government legitimately exists. The British Constitution is largely unwritten, flexible in nature, and based on absolute parliamentary sovereignty. The UK is also a unitary state. There is a central government, as well as devolved legislative and executive bodies in Scotland, Wales, Northern Ireland, and England. It is also a constitutional monarchy. This means that the head of state is a king or queen and that they exercise their powers in and through a parliamentary system of government in which the members of the executive are accountable to a sovereign parliament.

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1. Introducing constitutions and public law  

This introductory chapter provides an overview of the idea and importance of constitutions. A constitution is essentially a rulebook for how a state is run, and its function is to impose order and stability; to allocate power, rights, and responsibility; and control the power of the state. Indeed, a state’s constitution sets out the structure and powers of government and the relationship between individuals and the state, and a balanced constitution ensures a balance of power between the institutions of government. New constitutions can arise either through a process of evolution or as an act of deliberate creation. The chapter then considers the UK constitution. Public law is a fundamentally important part of the UK’s national law and is the law about government and public administration. It places limitations on the power of the state through objective, independent controls. It is also known as ‘constitutional and administrative law’.

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2. How the UK constitution has developed  

This chapter discusses the historical development of the UK constitution. The key to understanding the evolution of the British constitution is to imagine it being shaped by a dynamic ebb and flow of power between the key players—the monarch, Parliament, the Church, governments, judges—to determine the issue of where supreme power and authority would ultimately settle and reside. In the case of the UK, supreme authority settled in the monarch in Parliament, while political power resided with the executive. The chapter then argues that the constitution is fluid and changing, despite the received view that it has evolved slowly and peacefully without invasion or violent revolution. Despite fluctuations in power, and changes in Britain’s territorial composition and external alliances, there has always been a sense that the constitution is based on the collective memory of ancient laws and principles that fundamentally protect the people and cannot be changed.

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18. The European Convention on Human Rights and the Human Rights Act 1998  

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts. This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts’ historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

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Cover Constitutional Law, Administrative Law, and Human Rights

23. Conclusion  

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.

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13. The judiciary  

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.

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2. The Constitutional Rulebook  

This chapter looks at the constitution of the United Kingdom to understand its function as a rulebook: for constitutional arrangements to work well, people need to know what the rules are and there also needs to be broad consensus that the rules are right. It explores the sources of the rules in the United Kingdom’s famously ‘unwritten’ constitution: these include Acts of Parliament, the common law, and constitutional conventions. It also considers the question: who makes the rulebook? To answer this, we must listen to a debate about the respective roles of politicians and judges (called ‘political constitutionalism’ and ‘common law’ or ‘legal’ constitutionalism).

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Cover Constitutional and Administrative Law

2. Separation of powers  

This chapter discusses the origins and meaning of the separation of powers doctrine. It highlights the contribution of French nobleman and parliamentary magistrate Charles Louis de Secondat, otherwise known as Baron de Montesquieu, to political theory: L’Esprit des Lois (The Spirit of the Laws). The chapter also addresses the question of whether there is a separation of powers in the UK constitution. Differences of opinion between academics and judges as to the importance of the separation of powers doctrine to an understanding of the UK constitution are reviewed. Examples of overlap between the three functions of government are presented, and the key reforms made by the Constitutional Reform Act 2005 are discussed.