Essay Constitutional and Administrative Law

Alternatively, constitutional doctrines such as the Rule of Law highlight controls on the constitution as regardless of the power an individual wields, they can’t alter the constitution in a way that goes against the Rule of Law. Dicey’s second theme of the Rule of Law was the idea ‘no one is above the law, equality before the law. This definition illustrates the fact that everybody is under the law, including Members of

To consider each principles power and their own basis within the British constitution, the rule of law needs to be defined too, but this is somewhat harder to do as it has no set definition. Different theories have attempted to define it though, and most agree with the Diceyan definition.It states that the rule of law contains three core elements - one, the law is absolutely supreme, two, everyone is equal before the law, and three, the Constitution may be found in the ordinary laws of the state.

A constitution is a set of rules that defines the manner a country is run. The British constitution is said to be an unwritten constitution, more accurately it is uncodified as much more of the British constitution is written down, however, they are not all written down in a single document like a codified constitution would require as how the US is, however draws from several different sources such as; statutes laws, common law, conventions, EU laws, authoritative documents etc. Statute law, is a written law passed down by parliament for example the human rights act of 1998 which brought the European convention on human rights into British law, conventions is another

Using your own knowledge as well as the extract, identify and explain two ways in which the British constitution regulates ‘the conduct of government’. (10 marks)

A constitution is the foundation of any state’s authority to govern, it can be written, codified, or unwritten, uncodified. In a basic sense it lays the ground rules for any state including the various institutions, for example, the judiciary, the legislature and the executive. It importantly gives these institutions the power necessary to generate legislation, to then enforce it and to interpret the legislation. (Clark et al. 2013, p.706) The branches of government and their functions and powers are often set out in constitutions, in addition limitations on the branches of government are formalised. In the USA, where the constitution is written, a system of checks and balances are set out in the constitution to prevent any one branch from becoming all powerful or tyrannical. However, in the UK the constitution is unwritten and the emphasis is much less on a

Former Secretary of State for Justice Jack Straw described the current constitution as "[existing] within the hearts and minds and habits as much as it does in law."3 Most of the current UK constitution can be located within a mass of common law and statues which is rather inaccessible to the average citizen and the rest deriving from tradition and so is considered to be ‘common knowledge’. With a written constitution key constitutional rules can be collected onto a single document and clarified allowing for better accessibility to the masses. A future written constitution would need to be inclusive and not one that only parliamentarians and legal experts are able to decipher, and ultimately could bring the government and the governed closer together4 much like the effect that the 5th amendment has had on American citizens.

When critically analysing how recent legislative developments have affected the British Constitution, there are many different aspects to take into consideration. We need to consider the nature of the British Constitution, which has been widely accepted as uncodified, being found in Acts of Parliament, Court Judgements and Conventions. Whilst there is no written document forming the Constitution, there are understood to be governing principles. These include the need for the separation of powers and Parliamentary sovereignty. Three primary legislative developments affecting these principles are: The separation of powers within the United Kingdom, the Legislature, the Judiciary and the Executive, have been made much clearer over the years,

The purpose of a constitution is vital to the state and organizations, it provides rules the state must follow as a framework; it’s the supreme law of the country. The constitution has different functions; the most important are; Empowering states, Establishing unifying values and goals, Provide government stability, Protect freedom, and Legitimize regimes.

Caulfield M, ‘Constitutional Conventions in the United Kingdom: Should they be codified?’ [2012] Manchester Student Law Review 42 examines the uncodified constitution and in more detail whether or not it should be codified. It also examines the role of the separation powers within the British constitution. It therefore examines the good parts of the uncodified constitution such as the elements of flexibility and ability to change it

The British constitution is flexible in nature, which has allowed for the development of this country over centuries without the need for a fully codified constitution. I

Constitutional conventions are an unwritten source and are an essential part of the British constitution, they are not written by the parliament therefore they do not how to be followed. Hilary Barnett defines conventions as “A non legal rule which imposes an obligation on those bound by convention, breach or violation of which will give rise to legitimate criticism" this particular source is used to benefit society as these rules are considered as human morals and they make the legal constitution work. This is shown in the case of Attorney- General v Jonathan Cape ltd. Constitutional conventions are only binding to those it applies, for example the Prime Minister.

There has never been a ‘constitutional moment’ at which the fundamental rules required clarification and laying down in a single document; instead, there has been an unusual continuity in the governing institutions; It has relatively been peaceful, hence, no need for a written constitution . However, this cannot be said of the codified constitutions, which tend to come about after there has been a severe rupture in the political system of the country concerned. For example, revolution, civil war, the ending of dominance by another country . In recent years, the UK’s constitution has become partly written; shifting from a more political to a more legal form of constitutionalism (this can be seen in the power conferred on the courts to review government decisions on human rights ground.

Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the

The rule of law is seen as being one of the most fundamental components of the UK constitution as well as being a principle that is concerned with restricting parliamentary action. Though the rule of law is seen to be a component in the constitution; the actual meaning of the rule of law has been very problematic to interpret. This is considerably down to the fact that it means different things to different people as since the nineteenth century, academics, politicians and judges have proposed diverse definitions and explanations in regards to the rule of law and the role it upholds in the UK constitution.

The rule of law broadly requires; that all are equal before the law , that the government is subject to the law and must exercise its power according to the law, finally that ‘there exist fundamental individual liberties and minimum standards of justice, to which the law must conform’ . The rule of law is problematic to define but put simply it is not ‘the rule of men’ and is evident in societies with functioning judiciaries and a clear separation of powers such as New Zealand. It is one of several intrinsic attributes of our constitutional makeup and overall the Judiciary aid in ‘ensure[ing] that the rule of