Primary and Secondary Legislation

Primary legislation is also known as enabling legislation. You may also hear such legislation being referred to as ‘parent’ Acts or ‘parent’ legislation. This is not a complex idea. It really means that Parliament has created an Act of Parliament that devolves (pass on or delegate to another) some power to a subordinate person or body, who is allowed, usually in limited circumstances, to make rules or subsidiary law (delegated or secondary legislation). The important point to note is that the delegated or secondary legislation is given powers only by the parent legislation. If the delegated or secondary legislation is within the scope of the parent or enabling Act, it are said to be intra vires (a Latin term meaning ‘within the powers’). If the delegated or secondary legislation lie outside the scope of the parent or enabling Act, it is said to be ultra vires (or ‘outside the powers’). The process of investigating whether the delegated or secondary legislation lies within or outside the scope of the primary legislation is known as judicial review.

There are two types of secondary legislation (some universities may mention 3).  Dr Stephanie Pywell, writing in the New Law Journal (2013, p. 231) explains why there are 2 and not 3 types of secondary legislation:

The nature and classification of delegated legislation features in most introductory level law courses. For many years, most students have been taught that they are three types of delegated legislation: statutory instruments (SI), byelaws and Orders in Council. Research using Parliamentary papers indicates, however, that this method of classification is misleading, and that it is appropriate to identify two distinct types of delegated legislation: statutory instruments, of which there can be considered to be five forms, and byelaws.

Forms of statutory instrument:

SIs were created by the Statutory Instruments Act 1946. Section 1(1) is entitled "Definition of' Statutory Instrument'" and provides that there are two ways in which delegated legislation ("orders, rules, regulations or other subordinate legislation") may be made. If the law-making power is conferred on the Crown it is exercisable by Order in Council; if it is conferred on a minister, it is exercisable by SI. In either case, the resulting document "shall be known as a 'statutory instrument'". By definition therefore, Orders in Council are a form of SI, rather than a separate type of delegated legislation.

Additionally, the standard reference document used in the drafting of SI's (Statutory Instrument Practice: a manual for those concerned with the preparation of statutory instruments and the Parliamentary procedures relating to them [Fourth edition]) identifies at paragraph 1.5.3 another UK-wide SI called Order of Council.

So what are these 5 types of Statutory Instruments (SIs)? They are Orders in Council, Orders of Council, orders, rules, and regulations. I’ll discuss each below:

Orders in Council:

Orders in Council require the personal consent of the Queen but are issued by and with the advice of the Queen’s Privy Council. They are used when ordinary ministerial transfer of powers would not suffice. For example, an Order in Council was made to appoint Theresa May as the First Lord of the Treasury when she became Prime Minister on 19th May 2016.

Orders of Council:

Orders of Council are made by the Privy Council and have the force of law, but do not require the personal consent of the Queen. “Again these can be statutory or Prerogative. Whether statutory Orders are also Statutory Instruments depends on the wording of the particular Act under which they are made. Examples of statutory Orders of Council include approval of regulations made by the General Medical Council and other regulatory bodies. Examples of prerogative Orders of Council include approval of amendments to the By-laws of Chartered bodies.”

Orders:

"Orders are usually made by government ministers, and serve a specific, closely defined purpose. They should be used for executive powers and judicial and quasi-judicial decisions. Four specific types of order – Commencement Orders, Legislative Reform Orders, Remedial Orders and Public Body Orders – are worthy of particular mention because of the important purposes that they serve." [Pywell, 2013]

Commencement Orders

Commencement Orders (COs) bring into effect one or more sections of an Act of Parliament. They are widely used because it is often the case that not all of an Act comes into force on the date on which it receives the Royal Assent. It is common for an Act to include wording such as: "The provisions of this Act come into force on such day as the Secretary of State may by order appoint". [Pywell, 2013]

Legislative Reform Orders

Legislative Reform Orders are made under the Legislative and Regulatory Reform Act 2006 (LRRA 2006) and enable ministers to effect changes to primary legislation. You may recall that these are known as “Henry VIII clauses” and are often controversial. "A minister proposing an LRO must demonstrate that the proposed legislation is needed, is proportionate, represents a fair balance of interests, does not remove any necessary protection, does not unreasonably interfere with rights and freedoms, and has no constitutional significance." [Pywell, 2013]

Remedial Orders

Remedial Orders are used to correct shortcomings in existing legislation such as when a court declares legislative provisions to be incompatible with the European Convention on Human Rights, or when the European Court of Human Rights has determined that an individual's Convention rights have been infringed. Remedial Orders can have retrospective effect and must normally be laid before Parliament before they become law. An example of a Remedial Order is the Terrorism Act 2000 (Remedial) Order 2011, which repealed the extensive stop and search powers and replace them with powers that could be only exercised in much more limited circumstances. [Pywell, 2013]

Public Bodies Orders

The Public Bodies Act 2011 permits ministers to abolish, merge or modify the constitutional and funding arrangements of public bodies.

Rules:

Rules set out procedural laws, that is, they set out how things should be done rather than what should be done. The best-known example of rules are probably the Civil Procedure Rules 1998 (SI 1998/3132) which govern the running of the civil court system.

Regulations:

"Regulations are used to make substantive law – often amendments to existing primary or secondary legislation – and are frequently technical in nature. Regulations enable the law to be maintained and kept up-to-date and students should think of them when they learn that the advantages of delegated legislation include the use of expert advice to create detailed provisions and the result in saving of Parliamentary time. " Think of building regulations. [Pywell, 2013]

All of the above are forms of statutory instruments. The other remaining type of secondary legislation is byelaws.

Byelaws

Byelaws are made under the limited law-making powers conferred on local authorities and statutory bodies. They must be authorised by a Secretary of State (byelaws can create criminal offences and therefore must be duly authorised) and can deal only with matters within the jurisdiction of the maker. They usually reflect concerns within a local area.

Creating legislation

Legislation starts off as a Bill. This merely means that the legislation is in draft form. Bills can be proposed by members of the House of Commons (MPs) or by members of the House of Lords. Bills can either be (a) public Bill or (b) Private members’ Bill.  A public Bill is one which affects the entire population and is introduced by a government minister. A private members’ Bill is introduced by a Lord or an MP who is not a government minister. However, if the bill goes on to become law it will affect the entire population. Private members' Bills usually come about because some current issue is important and has attracted the attention of a pressure group which then lobbies an MP for change. Examples of pressure groups are the Citizens Advice Bureau,  and “Which?”.

There are three ways in which a Private members Bill can be proposed:

• A ballot procedure allows a maximum of 20 back-benchers to propose new legislation. However, the timeframe for Parliament to process new legislation means that there is only a small quota of legislation allowed to be introduced by back-benchers. At the beginning of each parliamentary session the 20 members who were successful in the ballot are allowed to present their proposed legislation. Each of the private members’ Bills are usually discussed on a Friday and given a provisional date for a second reading or any further stages to be undertaken. These Bills may be of a controversial nature and they tend to relate to a member or a group of members who have a connection with the subject matter. The majority of private members’ Bills are usually done through the ballot procedure.

• Ten minute rule Bills are allowed under Standing Order No. 23. This order allows members to gain permission to introduce a Bill. The ten minute rule allows members to introduce a subject matter and a proposed change in the law. This process is usually taken up just after question time on a Tuesday. The ten minute rule was used by the MP Alex Cunningham to introduce a Bill which proposed a ban on smoking in private vehicles where there are children under the age of 18 years old present. Pressure groups such as the British Lung Foundation (BLF) have supported this proposal through their campaign against smoking in cars where children are present.

• An MP is permitted to introduce a Bill after giving notice under what is known as Standing Order No. 57. This type of Bill cannot be presented until after all the ballot bills have been presented and they have reached the second reading stage.

[The Open University, 2014]

The Abortion Act 1967 is an example of a Private members' Bill that became law.

The Law Commission and Criminal Cases Review Commission (CCRC) may also suggest changes to the law.

Stages of a Bill

The stages that a Bill that has to go through before it becomes law is fully described here.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© The Open University

Constitutional Principles

“The constitutional statutes, conventions and prerogative powers that make up the UK’s uncodified constitution would not function as effectively as they do without three fundamental principles:

• the rule of law
• parliamentary sovereignty
• separation of powers.

These principles structure, strengthen and guide the legal and political aspects of a society.”

[The Open University, 2014]

The Rule of Law:

At level 1, I have already dealt comprehensively with The Rule of Law. We will meet this principle time and time again, so it is better to understand the basics of it now.

Separation of Powers:

Two philosophers contributed greatly to the theory of separation of powers; Montesquieu (1689–1755) who was French, and John Locke (1632–1704) who was English.

Montesquieu’s view was that:

“the administrative powers in France could be split into three: the executive, the legislature and the judiciary. The sovereign (monarch) stood alongside the administrative powers. The three powers would work and function separately from each other but still be linked in order to check and balance each other’s influences.”

[The Open University, 2014]

Locke had a slightly different view.

“He conceived of the legislative and executive as two different branches, as the law-making (legislative) and the law-executing power (executive). The judiciary was not seen as a source of power as its function was to interpret the existing law. According to Locke, it therefore did not need to be separated from the other two powers of legislature and executive.”

[The Open University, 2014]

In the UK, separation of powers means that the exercise of power is separated into three branches:

• Legislature – law making; refers to Parliament as the supreme (sovereign) law-making body.
• Executive – refers to all institutions of the state that apply the law. It includes the civil service, the police forces, and all the local authorities. The executive also relates to the Prime Minister, the Cabinet and other ministers.
• Judiciary – comprises of the courts, judges, magistrates and other personnel. Judicial officers have independence to prevent political interference, or any other type.

Previously, prior to the Constitutional Reform Act 2005 (“CRA”) which created the Supreme Court, the legislative and judicial branches of government were linked by the House of Lords. Remember that the House of Lords is the upper chamber of the legislative branch, but also 12 members made up the Judicial Committee of the House of Lords which was the highest court in the UK. This was considered a conflict and the CRA resolve this conflict by separating them through creation of the Supreme Court, which is now the highest court in the UK.

Parliamentary sovereignty:

“Parliamentary sovereignty is a key principle for the constitutional framework of the UK and unique to a common law system.

“A constitution provides the highest authority for a state. For example, the German constitution is a codified text which presents the sovereign authority of law in its interpretation by the constitutional court. The UK lacks this codified construct. There is no written and codified constitution that can be seen as embodying the sovereign authority of the law.

“The UK does, however, have a supreme law-making body: the Westminster Parliament. It is the highest law-making authority in the UK. The Westminster Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

“Parliamentary sovereignty is one of the essential pillars of the UK’s constitutional framework. However, this important principle is not enshrined in a constitutional statute. This is because the Westminster Parliament can make and unmake any law, so any statute regulating parliamentary sovereignty would be of limited effect.

“Constitutional statutes or conventions do not uphold parliament’s sovereignty. Constitutional statutes are the result of this principle. The courts and judiciary are the essential element of the UK’s constitution which secure parliamentary sovereignty. Hilaire Barnett summarises this in one brief paragraph:

Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

(Barnett, 2013, p. 112)

“Westminster Parliament, and therefore the legislature as a branch, is the most powerful institution in the constitutional framework. However, even Parliament can be held accountable for its actions. The Westminster Parliament is accountable to the electorate. The ultimate sovereign is the people as the electorate. The members of the Westminster Parliament are held responsible by citizens who vote in elections. The Westminster Parliament is given its authority and sovereignty by the citizens electing its members.”

[The Open University, 2014]

More on Parliamentary sovereignty later.

UK Constitution–Sources: Constitutional Conventions and Royal Prerogative

Moving on, we will look at Constitutional Conventions and Royal Prerogative.

Constitutional Conventions:

Constitutional conventions are an unwritten part part of the UK constitution. Nevertheless, they are important. Different theorists have put forward different definitions and theories as to what these conventions are and why they exist. Dicey, a legal philosopher, had this to say:

"understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power … are not in reality law at all since they are not enforced by the courts.

(Dicey cited in Barnett, 2011, p. 34)

This lack of enforcement by the courts comes in for a lot of criticism. Breaches may have other consequences such as civil unrest, or a political party failing at the polls.

Some known conventions are:

• The Prime Minister must be a member of the House of Commons
• Ministers are collectively responsible because of membership in the Cabinet. Collective responsibility means that ministers are expected to vote in favour of government decisions and to present a stable, functioning and united government. Failure to do so may mean resignation or removal.
• Ministers are individually responsible for their ministries. A minister can be forced to resign or removed for failures within their department, even if he is not personally involved. The final responsibility lies with him.

Conventions like these cannot be enforced in a court. The pressure to force resignation is political pressure. The Prime Minister can demand a resignation but it is still given voluntarily.

"The breach of a constitutional convention does not lead to legal redress but will lead to accusations of unconstitutional conduct."

[The Open University, 2014]

Royal Prerogative:

Royal prerogative powers are derived from those that were once exercised by the Monarch. With the rise in power of the Westminster Parliament, and the reduction of powers of the Monarch, these powers are now exercised by the government. However, they are still considered to be royal powers which remain with the Monarch of the day.

“Originally prerogative powers would have been exercised by the reigning monarch. However, over time a distinction has emerged between the monarch acting on his or her own capacity, and the powers possessed by the Monarch as head of state. In modern times, Government Ministers exercise the majority of the prerogative powers either in their own right or through the advice they provide to the Queen which she is bound constitutionally to follow. There have been calls to reform prerogative powers, chiefly because they are exercised without any parliamentary authority.”

(House of Commons, Briefing Paper SN/PC/03861, 2009, p. 1)

“The Westminster Parliament has no influence on the exercise of these powers but is able to influence political developments in the UK (domestic affairs) and abroad (foreign affairs).

Examples already mentioned of royal prerogative powers relating to foreign affairs are the power to declare war and to declare peace and the power to become part of treaties. At a national level the powers are used to pardon offenders, appoint ministers or summon Parliament.”

[The Open University, 2014]

Next: Constitutional Principles.

UK Constitution–Sources: constitutional statutes

From the previous post, we saw that the UK Constitution has 4 main elements: constitutional statutes, constitutional conventions, royal prerogatives and constitutional principles. The first three are the sources of the constitution. This is what we will discuss now; constitutional principles will be discussed later on.

Constitutional Statutes:

As mentioned before, constitutional statutes represent the written part of the UK constitution. These are Acts of Westminster Parliament, which is the supreme law-making body of the UK (there is more to discuss on this later, however please make a note of this now). It is important to note that not every statute (Act of Parliament) is a constitutional statute; indeed it is very rare for an Act to be considered a constitutional statute. The difference between a constitutional statute in an ordinary statute has been clarified in the decision of: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151.

Interestingly enough, in this case it was an argument over usage of metric weighting system and imperial weighting system that brought about the differentiation of ordinary and constitutional statutes. (As a side point, this case also established that EU law took precedence over national law due to the European Communities Act 1972 – you may want to remember this in future).

Lord Justice Laws established that there was ‘a hierarchy of Acts of Parliament’and gave the following explanation:

‘In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights’.

He also made a further observation: that ordinary statutes may be repealed by implication, but a constitutional statute “may not and neither can it be impliedly repealed or subjected to significant amendment by recourse to parliamentary statements during its enactment…”

© The Open University

Since Parliament is the supreme lawmaking body, it has the power to repeal or amend ordinary Acts of Parliament; however, constitutional statutes are much harder to amend or repeal as they have wider and significant impact on the constitution itself. Such is the significance that the government of the day tend to seek the support/opinion of the public before making changes to a constitutional statute, for example, by holding referendums. The UK held a referendum before joining the European Community (and recently held another on the choice of exiting the EU) because of the significance of the changes which would happen, not only to the society but also to the constitution.

Henry VIII clause:

Acts of Parliament sometimes contain a 'Henry VIII clause' which allows a nominated member of the executive to make amendments to legislation without the time and expense of making such a change in Parliament. In other words, a ‘Henry VIII clause’ allows secondary legislation to amend primary legislation. These clauses are often a cause of controversy.

An example would be The Immigration Act 2014, which allows the Secretary of State for the Home Department (SSHD) to make amendments under section 74.

Next: Constitutional Conventions

The UK Constitution

A constitution that is unwritten is known as an uncodified constitution.

The UK Constitution is describe by Barnett (2013, p. 3) as: monarchical, supreme, largely unwritten and flexible. Each of these are described below.

Monarchical:

The Queen (Monarch) is the Head of State and still has political and legal influence on the State. Most of the Monarch’s powers are actually exercised by the Government on behalf of the Queen, and later on we will look at what powers the Queen still retains.

The Queen. Photo linked from: http://pamelageller.com

Supreme:

The UK has a unitary constitution, meaning that there is one central government that exercises power and all other administrative divisions can only exercise powers that the central government chooses to devolve, and which the central government can vary at any time. In the UK, the power is vested in Westminster Parliament, which in turn passed legislation creating ‘subordinate’ legislatures: the National Assembly of Wales, the Scottish Parliament, and the Northern Ireland Assembly.

Of passing interest, the federal constitution divides power between a federal government and individual states which may have their own constitutions while there is also a national constitution. A notable example is the United States of America.

Largely unwritten:

“The UK’s constitution has developed over a number of centuries. It is generally recognised as having begun to develop in 1215 with the Magna Carta. Other key events that have followed include the Union with Wales (1535–1542), the Bill of Rights 1689, the Union with Scotland in 1706, the Reform Act 1928, the European Communities Act 1972, and the Human Rights Act 1998. You will explore the most recent of these later in the module. They are written documents but they are also supplemented by a number of unwritten conventions. The constitution of the UK has been developed on a piecemeal basis and is not contained in one complete document. Indeed, the constitution of the UK is uncodified.”

[The Open University, 2014]

The UK Constitution is considered to be ‘largely unwritten’ as some key aspects of it are not to be found in any Act of Parliament. The main elements of the Constitution are as follows:

Constitutional Statutes:

Constitutional Statutes are considered to be written documents that changed the constitution in a significant way, such as the European Communities Act 1972, and the Human Rights Act 1998. Tehy are also viewed as legal sources of the Constitution.

Constitutional conventions:

These are unwritten and seen as equivalent to constitutional statutes. They are the ‘traditional expectations created by informal rules of behaviour and rules of administration developed over centuries’. While they are not written, and therefore cannot be enforced through the courts, they are still seen to be the non-legal source of the UK constitution. It should be noted that they are respected and still function well.

Royal Prerogatives:

“The royal prerogative has its roots in history, from a time when the monarch had absolute power. Over time this diminished as Parliament gained more powers. Nowadays the royal prerogative is mostly used by the government. This power relates to:

• the legislature – the summoning and dissolution of parliament; the granting of royal assent to Bills
• the judicial system – pardoning of convicted offenders or remitting or reducing sentences
• foreign affairs – the making of treaties; the declaration of war
• armed forces – the sovereign is commander-in-chief of the armed forces
• appointments and honours – appointment of ministers; creation of peers and conferring of honours and decorations
• in times of emergency – requisitioning of ships (where compensation would be payable).

While the prerogative power is now generally exercised by the government, there are some prerogative powers (recognised under common law) which remain with the Crown. These are as follows:

• The appointment of a Prime Minister. The sovereign must appoint the person who is in the best position to receive the support of the majority in the House of Commons. This is generally the leader of the political party with the majority of members in the House of Commons.

• The giving of royal assent to legislation. In 1708 Queen Anne became the last monarch to refuse royal assent to a Bill passed by Parliament. Additionally, no monarchs since the sixteenth century have signed Bills themselves and Queen Victoria was the last to give royal assent in person in 1854.

The royal prerogative is seen as a legal source of the UK’s constitution as it forms part of common law.”

[The Open University, 2014]

Constitutional Principles:

The three constitutional principles are: the rule of law, parliamentary sovereignty, and the separation of powers, all of which underpin the UK’s constitutional framework.

Flexible:

“Generally, there are strict and precise rules as to how a national parliament can alter or reform the constitutional framework. Most states have a written document and look to it as the highest source of law, rights and power. For example, the constitution of the United States is regarded as the supreme law of the United States. To amend any aspect of the written document setting out the constitutional framework would require a compelling reason. There are normally rules in place to make the process of amendment slow. These allow time for reflection and recognise the important impact that any change may have. This creates an impression that the constitution is very static.

The UK’s constitution, however, is different. It is regarded as stable but also flexible as it is mainly unwritten. However, most of the constitutional statutes would be difficult to amend and it would be Parliament that decide when and how to do so.

Conventions, however, cannot be amended through a legislative process. They are mainly unwritten and change gradually over time as change itself becomes accepted. Conventions evolve over time. For example, if the electorate were to decide that the Prime Minister no longer has to be a member of the main political party in the House of Commons (a current constitutional convention), this constitutional convention would change because of the acceptance by the electorate of that fact. In this way the UK’s constitution can adapt to changes in society and evolve in response to those changes.”

[The Open University, 2014]

Constitutions – what makes a constitution?

In the previous post, I presented an introduction to constitutions. In that previous post, readers were asked to look at the definitions of what a constitution is and think of some of the characteristics it may have.

Anthony King, Prof of Government at University of Essex, has written a book The British Constitution. Prof King says:

“‘Constitution’ refers:

to the set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” (King, 2009, pp. 3–4).

Note carefully that Prof King does NOT say that a constitution has to be written, a point I had asked readers to note in my previous post. So when the Encyclopaedia Britannica refers to ‘the fundamental written document…’ it is incorrect. While most countries may have a written constitution, it is not an absolute must, as the UK’s Constitution clearly shows; it is a mixture of Constitutional statutes, Constitutional conventions, Royal prerogative and Constitutional principles (eg the rule of law). More on this later. Countries that do not have completely written constitutions include the United Kingdom, Canada, Israel, New Zealand, and Saudi Arabia.

Prof King also points out:

“In the first place, a definition of this kind is wholly neutral in moral and political terms. It says nothing whatsoever about whether a given country’s constitution is good or bad or about whether it is worth commending or condemning. A country’s constitution is simply the set of rules and common understandings that currently exists. In this sense, almost every country has a constitution, and to say that a given country has a constitution is to say nothing else about that country save possibly that it is not a so-called ‘failed state’, a state whose governmental structures have effectively collapsed. Germany under the Nazis and the Soviet Union under the Communists both had constitutions on this definition, however abhorrent they may have been. Germany, Russia and Britain today also have constitutions in this sense, and whether their constitutions are admirable or otherwise is, in this context, neither here nor there.” (King, 2009, pp. 3–4).

So, Prof King describes the definition of a constitution, the set of rules and understandings that currently exists, as a neutral definition. It does not go any further to describe whether a constitution is good or bad.

“Even given this definition, there may, of course, be some debate about which are a country’s ‘most important’ rules and common understandings. There is bound to be, on the one hand, a core constitution, the changing of which everyone would agree was a real constitutional change, and, on the other hand, elements of a country’s political practices that might or might not be regarded as strictly constitutional and the changing of which might or might not therefore be regarded as constitutional change. The rule in the United Kingdom that free and fair elections should be held every few years is undoubtedly one of the country’s most important rules, as is the rule that the leader of the majority party in the House of Commons normally becomes prime minister. At the other end of the scale of importance are, for instance, the rule requiring the Speaker of the House of Commons to wear a black gown when presiding over the House and the rule (or is it merely a custom?) requiring someone called the Gentleman Usher of the Black Rod to knock at the door of the Commons chamber before summoning members of the Commons to hear the Queen’s Speech in the Lords chamber.” (King, 2009, pp. 3–4).

In the above, Prof King points out that a constitution has a ‘hierarchy’ of rules, with some having more importance than others. He cites the rules regarding regular, free and fair elections as one of the more important, or ‘core’, rules.

Next, the UK Constitution.

Constitutions

Before I begin on Constitutions, I should mention that the exam for the W102 was everything I hoped for. As the first sit-down exam I had for the Q79 LLB, I have to say that the course study does prepare you for the exam, and the TMAs are especially helpful when you add the tutors’ advice and really take on board what they are saying. I’m thinking I passed.

Constitutions

I label this in the plural, because although the UK constitution is the subject of interest, it certainly is only one type of a constitution and there are others that I’ve compared it to. I may well be mentioning some of the comparisons so that readers can get an idea of differences and similarities along the way.

The next Unit of the W101 module is the UK Constitution.

Learning outcomes

After studying this unit you should be able to:

• explain the concept of a constitution
• explain key constitutional principles
• explain the different elements of a constitutional framework
• discuss the different elements of the UK’s constitution
• discuss the evolution of the UK’s constitution

[The Open University, 2014]

Obviously, as with all things legal, we must define what is a constitution. At this point before reading on, you should, on your own, try to think of what is a constitution, what characteristics it has that makes it a constitution and come up with your own definition. You can even try creating a constitution for a club, for example.

I will point out that constitutions are legally binding, and may be used by an organisation eg a cricket club or union or political party. Or, a constitution can be used by a group eg the United States of America, or the European Union. Equally, the individual participants within the group may have separate constitutions, eg the Constitution of Virginia (USA) and Constitution of UK (EU).

"… at its most basic a constitution is seen as having the following elements:

• rules about the structure and power of government of a state
• rules about the basic rights and freedoms of the citizens of that state."

[The Open University, 2014]

“The Encyclopaedia Britannica (2014) defines a constitution in the following terms:

Every government has an organizational structure that defines the specific responsibilities of its public officials. Some officials make the laws, others see to their enforcement. Taxes must be collected and revenues spent. There must be provision for preserving the domestic peace and providing for national defense [sic]. The fundamental written documents that state how governments shall operate and define their limitations are their constitutions.”

[The Open University, 2014]

Note the last sentence… ‘The fundamental written document…’

We will get back to the highlighted word a bit later on.

“set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” [King, 2009, p3]

The above is by Anthony King, an academic author on the subject of the UK Constitution. Note that he reiterates the organisation (relations) among governmental institutions and also the relationship between those institutions and the people.

“The definitions discussed so far have considered the state, the government, and also the relationship between the state and individuals. In effect they have considered what a constitution is. Thomas Paine (1737–1809), an Anglo-American political activist during the American War of Independence, looked at the concept of a constitution from a rather different perspective:

A constitution is not the act of 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.

(Paine cited in Barnett, 2013, p. 7)

This approach to defining a constitution provides a different perspective as it focuses on the source of a constitution, where it comes from. Paine’s view is that a constitution ultimately derives from the people acting through the government.”

[The Open University, 2014]

I will continue on constitutions…