An Outline of Constitutional Law

Constitutional law defines government, parliamentary and public power. As such, it affects every citizen. Put very simply it defines and limits the power that governments, ministers, public officials and local authorities have. Constitutional law determines how governments govern. It defines and regulates procedures for the proper working of government and details citizen’s rights and duties. In English law, a process called judicial review means that a judge can review a decision made by a minister, council, or other public official, and rule whether the person making the decision did so, in all the circumstances, in the way that a reasonable official should considering all the proper matters. Other jurisdictions have higher constitutional law courts, which consider constitutional matters, in Britain; the ordinary law courts consider judicial review proceedings, usually the High court.

Constitutional law defines how different organs of the state behave and interact within the system as a whole to provide the checks and balances to ensure the system works properly and prevents governments turning into dictatorships. Some countries, such as the United States of America, have a single document called the constitution, which detail all the rules governing how the state, public bodies and officials behave. Others like the United Kingdom have rules derived from statute, convention, usage, judicial rulings, Parliamentary proceedings, and answers.

All democratic states have a constitution, but not all democratic states have one single document called the constitution. According to De Smith, Britain has a constitution because it has “a regular system of Government with a complex of rules, defining the composition, function, and inter-relationship of the institutions of Government and delineating the rights and duties of the governed”.

Constitutional law governs how those who run the state are appointed. In the United Kingdom, this means regulating elections for members of the House of Commons and appointments to the House of Lords.

Constitutional rules govern and describe the functions and powers of each part of the state machine. In the UK, this means that Constitutional rules govern whom the Queen should ask to form a Government after a General Election (the leader of the party with an overall majority). These constitutional rules also say What the Queen should do, or not, in the different circumstance that can prevail after an election. For example, after the 2010 General election no party had an overall majority. The General election was on May 6 2010, the result was unclear, and no party had an overall majority. It was unclear whether the Labour or the Conservative party would form a coalition with the Liberal Democrat Party. The queen waited for the parties to conclude their negotiations. Gordon Brown was still Britain’s Prime Minister pending negotiations. Uninformed reporters did not understand why Mr. Brown was still in Downing Street and some newspapers carried scurrilous attacks on Mr. Brown, who remained in Downing Street, doing his constitutional duty, to remain Prime Minister, until there was a new Government. He could not resign, until the Conservatives and Liberal Democrats had agreed a coalition, and there was a Prime Minister to take over. Once there was on May 12, Mr. Brown went to the Palace to tender his resignation, and the Queen sent for David Cameron, as the new Prime Minister.  

The United Kingdom’s constitution protects citizens from dictatorship. It provides the checks and balances to ensure that a government cannot prolong itself. Many think that the monarchy has no power and that the British government exercises all power on the sovereign’s behalf, they are mistaken. The monarch holds some very important powers. The queen and the House of Lords acting together could remove a government, which was trying to outstay its term or prolong itself. During World War 2, Parliament had to pass annual legislation to prolong itself and the same Parliament sat from 1935-1945. If the House of Lords had voted against these bills, the Commons could not have continued. The Commons, being the elected house, is usually more powerful than the Lords are, however; in this case, The House of Lords is in charge.

A constitution whether written in a single document or not provides the regulatory framework for usual and unusual situations. It says who should do what, how and when. It regulates state organs, ministers, officials, and the rights and duties of citizens. It covers all parts of the state, for example in the United Kingdom; it covers everyone from the Queen and Government, down to the traffic warden in the High Street. It covers how the state works from the running of General elections, and how Parliament should deal with legislation, to what a local authority-planning officer should properly consider when deciding whether Mrs. Brown in Acacia Avenue can have dropped pavement (sidewalk) curb outside her house. Constitutional law covers citizens’ rights and duties under the law. Another name for Constitutional law is public and administrative law and this term explains constitutional law well. Constitutional law governs how public institutions behave to citizens, how governments and Public officials administer their duties, and how courts and tribunals administer the law in a proper way. It also details citizens’ rights and duties to the state. Constitutional law relates to politics and history, among other things but is different to both. It reaches into every area of citizens’ lives, from vital things, that guarantee freedom, such as Habeas corpus, the right to vote in free and fair elections, to more every day items, such as whether your local council has considered the correct criteria when deciding whether to move a street sign. When you understand Constitutional law, you understand why things happen as they do, and you would have understood why Gordon Brown stayed in Downing Street from May 6-12 2010.

It is possible to outline Constitutional law in one sentence. Constitutional law is “a complex of rules, defining the composition, function, and inter-relationship of the institutions of Government and delineating the rights and duties of the governed”.

Off line sources: “Constitutional and Administrative Law” De Smith and Brazier. Penguin Books sixth edition