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Broadbent: Public Law Directions

Chapter 1

1. What are the main characteristics of the British constitution?

You should be able to identify a number of characteristics – it is unwritten, flexible, has a constitutional monarchy etc, but the key point is to understand what these terms mean and being able to explain them. Some are also contentious – following the devolution of government to Scotland and Wales, is the UK moving from being a unitary state to being a federal state? Some would argue it is, whilst others might say that given the limitations imposed on the Scottish Parliament and the Welsh Assembly this has not gone far enough to create a federal state. Less tangible characteristics such as the historical development of the constitution and the parallel characteristics of continuity and change are also important ways in which the constitution can be characterised.

2. How does the British constitution differ from constitutions of other countries?

The British constitution differs from almost all others in that it is unwritten – this does not mean nothing is written down but rather that there is no single document or collection of documents that form the constitution in the sense of forming the fundamental basis of the government of the country. Instead of a written constitution the UK has the sovereignty of Parliament at its centre. Think about the implications of this for the way in which the constitution develops, and why it is difficult to compare the UK with other countries as its arrangements are not replicated elsewhere – even so called Westminster model constitutions are generally written and thus operate in a different way. In any event, the idea of modelling a constitution is especially difficult with regard to the British constitution given its constantly changing nature and lack of formal structure.

3. Describe the structure of British government, both national and local

In answering this it is important to differentiate between the central, devolved and local government structures. What they all have in common is that the political members are, with the exception of members of the House of Lords, elected.  They also have in common that they are divided between the political members and the administrative members. The political part of the central government is located in Parliament whilst the administrative part comprises the civil service.  Both are divided into Departments. Government in Scotland revolves round the Scottish Parliament and the Executive contained within it, rather like the situation with regard to the British government.  The same is true of the Welsh Assembly.  Both get their power from statute, which impose limits on their ability to act. This is unlike the central government which has some inherent powers such as those exercisable under the royal prerogative. The system of local government is wholly based on statute and only enables councils to exercise limited powers.

4. What is the impact of British membership of the European Union?

In thinking about this, differentiate between the political implications and the legal impact. Our concern is with the legal impact and this requires consideration of the way in which membership has been given effect. Have a look at the European Communities Act 1972, especially s.2 and think about the implications of this for Parliament, the courts and citizens. One important consequence has been that the hierarchy of laws has altered in that Acts of Parliament that are incompatible with European Union law have to give way in order to implement the principle of European sovereignty which is necessary to enable the law to be uniformly applied across the various member states.  Have a look at the Factortame litigation for an example.