Commentary: ‘First Report: Reviewing the Constitution Chp 2’

In this post I share my  reaction to the politicians’ responses to being asked to define the constitution by the then newly created House of Lords Constitution Committee. You can find this publication at http://www.publications.parliament.uk/pa/ld200102/ldselect/ldconst/11/1103.htm

  • The need to set some kind of definition of the constitution, is a good idea in my opinion because it provides a framework for considering any changes or amendments to workings of government or he legal system.
  • They offer the definition of “the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual. ” (para 20)
  • In addition they offer the five basic  tenets of the United Kingdom Constitution:
  1. Sovereignty of the Crown in Parliament
  2. The Rule of Law, encompassing the rights of the individual
  3. Union State
  4. Representative Government
  5. Membership of the Commonwealth, the European Union, and other international organisations.
  • They want to focus on significant constitutional issues, surely everything is significant in constitutional law as it somehow finds he way of affect citizens, their rights and relationship to the state.
  • Nevertheless to do this they utilise the two Ps test – a principal part of the constitutional framework and one that raises an important question of principle
  • This test is difficult, because how does one deduce whether something is a principal part of the constitutional framework as without any individual part it would appear the constitution fails.
  • Their definition is helpful in so far as it highlights what we should look at and analyse if we want to engage with constitutional matter but as for practical applications, that would affect judges or legislators or the government, it seems to be lacking practicality, largely due it being so broad.
  • I think that that this document shows the significance of the difference between a constitution which is a document and constitutionalism which is an ideology which is far-retching and difficult to confine to a sole definition.
  • If the UK was to draft a constitution, then it would have to include not only EU incorporated law and statutes such as HRA but common law principles and this would go against the notion of common law which is open to change without being entrenched and thus I find a contradiction in attempting in draft a constitution and abide by the flexible principles of a common law legal system.

 

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