Common Questions

  1. What is the purpose of a constitution?

    At State level, a constitution is the body of rules which:
    1. establishes the key institutions of Legislature, Executive and Judiciary,
    2. prescribes the mechanism for choosing the members of those institutions; and
    3. sets out the extent of their powers.

Constitutions usually also assert the key rights of the State's citizens, and the extent to which the State can interfere with them.

  1. What is the difference between a codified constitution and an uncodified constitution?

A codified constitution is one in which all the key rules of the constitution have been organised into a single document - as in the USA. Typically, a codified constitution is a form of "higher law" to which all other laws are subject - so, in the USA, if an ordinary law conflicts with the constitution, then the Supreme Court of the USA is required by the constitution to strike it down.

The UK, on the other hand, has an uncodified constitution. This means that, while the UK does have rules about e.g. who can vote in Parliamentary elections, how Government Ministers are chosen, and key citizens' rights (e.g. the Human Rights Act 1998), these rules are found in a variety of sources, and have no special legal status. Some of the rules (e.g. conventions as to how Government Ministers are appointed) are not even laws at all - just expectations about how the Queen and other key players in the Constitution will exercise their legal powers.

  1. Why doesn't the UK have a codified constitution?

Most countries adopt a codified constitution at a key changing point in their history - e.g. following:

  • a declaration of independence from a former colonial power (USA)
  • a violent revolution (France)
  • defeat in war (Germany)
  • a breakdown in the previous political system (Russia)

The UK has not experienced any of these events in almost 1,000 years. Instead, the UK's uncodified constitution has evolved gradually, through a series of individual laws and changes, rather than in a single "big bang".

  1. What is entrenchment?

Since a codified constitution is a deliberate attempt to articulate the defining political, social and legal values of the society which adopts it, it usually contains mechanisms designed to "entrench" those values, and protect them against change. These mechanisms typically require any law amending the constitution to be passed by a special majority in the legislature, and/or to be approved by a referendum. This makes it more difficult to change the constitution than it would be to change other, ordinary laws.

For example, while there have been 27 Amendments to the USA's constitution since it was adopted in 1787 (so it's not impossible to change it!), the constitution itself requires any Amendment to be approved by a two-thirds majority in each chamber of the legislature, the President, and three-quarters of the 50 States. In reality, this is extremely difficult to achieve - the most recent Amendment took 203 years to be passed!

By contrast, in the UK, even "constitutional statutes" such as the Human Rights Act 1998, are not subject to any special law-making procedures, and can be changed or repealed just as easily as any other Act of Parliament.

  1. What is the theory of the separation of powers?

This is a political idea, set out in Baron de Montesquieu's De L'Esprit de Lois, which requires the 3 key institutions of State, i.e.:

  • the legislature (the law-making body - in the UK, Parliament);
  • the executive (the body that runs the country - in the UK, Government); and
  • the judiciary (the body which decides legal disputes - in the UK, the Courts)

to be separate both in function and personnel. This means that none of the 3 institutions should perform or interfere with the functions of another, and that no one should work in more than one of the institutions.

The USA's codified constitution is firmly based on the separation of powers. The UK's uncodified constitution, on the other hand, contains significant overlaps of both function and personnel between Parliament and the Government.

Tuesday 23rd October 2018