Tuesday, 2 August 2016

What is a constitution?

" ... it would be very difficult for a living writer to tell you at any given period in his lifetime what the constitution of this country is in all respects" - Stanley Baldwin, Prime Minister 1923-29 and 1935-37.

This post offers some very basic points which will need to be amplified by later posts.

A constitution, whatever its form, provides a fundamental framework for the governance of a nation.  In the Quark Fishing case 2005, Lord Bingham commented (para 12): "Any constitution, whether of a state, a trade union, a college, a club or other institution seeks to lay down and define, in greater or lesser detail, the main offices in which authority is vested and the powers which may be exercised (and not exercised) by the holders of those offices ....."

A constitution of a State will deal with matters such as:
  • the structure of the State;
  • the various institutions of the State;
  • the methods to be used for law-making - the legislative power;
  • how important decisions affecting the State are to be made;
  • how the State will be governed - the executive power;
  • how disputes (including those involving government) will be dealt with - the judicial power.
Many nations have a formal,  or codified constitution and links to some examples are provided below.  Some of them are very lengthy, detailed documents seeking to address all (or most) eventualities.  Such constitutions tend to form a fundamental law of the State and other laws may be assessed for their validity against the constitutional position.  Formal constitutions often prescribe a particular procedure for their amendment so that it is more difficult to alter the constitution than other laws.

The UK does not have such a formal codified constitution but, largely as a result of history, a strong constitutional framework exists.  The UK is a constitutional monarchy and a Parliamentary democracy.  The desire of the people to be free and to have a say in how they are governed is very strong.  Participative democracy (e.g. via political parties)  and working together are to be encouraged.  This helps to bridge disagreement and leads to workable answers to difficult problems many of which do not have perfect solutions.

The constitutional framework is to be found in the institutions of the State (the Monarchy, Parliament, Government and the Judiciary) and also in the laws enacted by Parliament some of which have particular constitutional importance.  The common law and many judicial decisions also play a key part.

Even that is not the full story since there are "constitutional conventions" which are not laws but may be described as unwritten rules of good practice relating to what should be done in certain situations.

Further sources of information about the constitution include the leading textbooks on Constitutional Law.  

The UK' constitution is not static and it adapts according to changing circumstances.  This adaptability is sometimes seen as a strength and an advantage over formal constitutions.  Recent years have seen a fashion for each government to bring about constitutional changes.  This is a piecemeal approach to reform and sometimes the consequences of change have not been well considered in advance.

Some constitutions guarantee certain rights to citizens and may also impose responsibilities.  The UK does not have such an arrangement.  Nevertheless, the UK is a member of the Council of Europe and the European Convention on Human Rights operates under the aegis of the Council.  The Human Rights Act 1998 enables most of the rights under the convention to be raised and enforced in the domestic courts of the UK.  The Act offers strong protection to individual rights but, for political reasons, there are grounds for some concern about the future of such protection.


Examples of formal constitutions:

United States of America and see this explanation

Federal Republic of Germany

Portugal

Federative Republic of Brazil

India

Peoples Republic of China

North Korea

Other Links:

Council of Europe 

European Convention on Human Rights


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