Sample Constitutional Law Assignment

Constitutional Law Assignment Sample

Your essay must be submitted by 12 pm, 19th November 2021

Qestion

Answer only one of the following two questions.

Either:

‘The rules that allocate and control governmental power in the United Kingdom are diverse in nature, sometimes uncertain in content and nearly all of them are easy to change. As a result, it is doubtful that there is such a thing as the “constitution of the United Kingdom.”’

Critically analyze this statement.

Or:

‘The reliance of the UK constitution on conventions is both a defining feature and a fundamental weakness. While they are supposedly binding, conventions cannot effectively proscribe “unconstitutional” behavior and their content and enforcement is often at the mercy of executive whim.’

Discuss

Note the following carefully:

- The required length of these essays is no more than 1,500 words including footnotes but excluding the bibliography.

- Essays should be word-processed and double-spaced.

- Please ensure that the name of your TUTOR – the person who leads your tutorials – is clearly indicated on your essay.

- See guidance on essays in the UK Constitutional Law module handbook, in the Undergraduate Handbook on essay writing, as well as in the section below.

- Do NOT start to write your essay before reading all sets of guidance carefully.

UK Constitutional Law Formative Essay Guidance for assignment help 2021-22

Your formative essay is due to be submitted on the 19 the November. Below is some guidance which you may find useful.

Knowledge

Preparation of a formative/summative essay begins long before you consider writing a specific essay. Lectures and – more importantly – your preparation and participation in tutorials are central to developing an understanding of the topics in question. The core preparation for any kind of written work on a topic is therefore to know and understand the topic. This means:

(i) that you should be able to outline and describe the core features of a particular issue (e.g. constitutional conventions) using evidence to support your points (e.g. conventions are binding rules of ‘constitutional or political ethics’ (Dicey); which will not be enforced or defined by the courts ((R (Miller) v Secretary of State for Exiting the European Union); but which may be recognized in the course of adjudication (Attorney-General v Jonathan Cape); etc., etc.);

(ii) that you should have a good understanding of the broader context within which the issue operates (e.g. conventions complement the constitution’s legal elements (Jennings); conventions often influence how prerogative powers are exercised (Dicey); they form a core reason why the constitution is said to be unwritten (Dicey) and ‘political’ (Griffith); they have been, in some instances, ‘codified’ in recent years (Ministerial Code, Cabinet Manual, Sewel Convention), etc., etc.);

(iii) and that you should have a reasonable appreciation of the various critical perspectives on a given topic (e.g. difficulty pinning down the precise meaning/requirements of some conventions (Marshall, though see Jennings’ test and that some conventions – e.g. re granting Royal Assent – are both clear and consistently applied)); conventions policed by those whom they are meant to bind (e.g. Ministerial Code, see Tomkins); may be inconsistently applied in practice (Sewel convention is ‘normally’ to be observed), etc., etc. 1

From the perspective of preparing an answer to an essay question (i) will provide the backbone in terms of content, (ii) will provide depth, and (iii) will facilitate the kind of critical analysis that will lift a 2:2 level response into a solid 2:1. Your aim should be to build a bank of knowledge that you can deploy effectively (and flexibly) in response to the question with which you are confronted.

Planning and Preparation

It is trite to say so, but … ANSWER THE QUESTION. A vital element of essay technique is to respond to the specific question posed. This requires you to study the language/phrasing of the question carefully. Careful examination of the text of the question will ensure (i) that you are alert to all of the issues that are raised by the question and (ii) that you are able to structure your answer effectively in order to address those issues.

Take the following example from the 2016-2017 UK Constitutional Law Exam paper:

‘The debate over whether or not the UK constitution exists is a distraction from the really important task: undertaking a clear-eyed assessment of the strengths and weaknesses of the UK’s constitutional order as it operates in practice.’

Discuss

It should be immediately clear that this question raises a couple of issues worthy of distinct treatment. Therefore, you need to carefully break down the different

1 These examples are indicative, and absolutely do not provide a comprehensive map of the issues relating to constitutional conventions. elements / issues that the questions are asking you to address. For the question above, the issues are:

(i) the debate over whether or not the UK has a constitution;

(ii) the practical strengths and weaknesses of the UK’s constitutional order.

It should also be clear that – in order to tackle these issues effectively – you should address a number of implicit questions:

(i) what is a constitution?

(ii) why is there debate over whether the UK has one?

(iii) on what evidential basis are you judging characteristics of the UK constitutional system to be either strong or weak?

I would hope that it can be recognized that it is also implicit in the question that the debate over the existence of a ‘constitution’ is seen as being less important than the issue surrounding the practical strengths/weaknesses of the system as it operates in practice. You would therefore be expected to address this issue.

Structure

A good answer will almost always be the product of quite careful planning. Careful planning will almost always be the product of a careful reading of the question. Following a process through which you identify the core components of the question will often point towards a basic structural outline (and will often also point you towards those elements of the question which might require you to explain something, and those (perhaps uncertain or contested issues) which require discussion or analysis).

To take the first part of the above question as an example… on the issue of whether the UK has a constitution you can begin to plot a response:

- short intro – what are you going to demonstrate in this essay? You must tell us what you are going to argue in your essay and present the structure you have adopted so your reader can easily follow the development of your argument.

- characteristics of the UK system (no codified constitution, instead an amalgam of various ‘constitutional’ sources (statute, common law, prerogative, convention etc.));

- do these sources operate to discharge the general functions of a constitution (allocation/limitation of governmental powers etc.)?

- can these sources collectively be labelled (described as) a ‘constitution’? (see King, House of Lords Select Committee on the Constitution);

- do these sources satisfy those who argue for a more exacting definition of the term constitution? (e.g. Ridley); etc..

I should stress that the above is just one way to begin responding to this question, which seeks to emphasize the importance of paying attention to the language of the question posed. In responding to this particular question, once you reach the section which requires consideration of strengths/weaknesses of the UK’sconstitution/constitutional system you will have a good deal of scope to pick and choose from what you understand to be the best examples in support of your overall argument. Planning remains important here however, in order to ensure that your essay has a logical flow (and in order to ensure you don’t just end up writing directionless prose).

Ultimately your objective should be to structure (and evidence) a response which articulates/defends a position. The best responses will outline this at the outset – ‘in this essay I will demonstrate that…’ – and then build a logical argument in the subsequent paragraphs, before concluding.

Development and Analysis

Alongside a good structure, it is also important to fully develop – and evidence – the points you are seeking to raise. Compare these two short paragraphs (NB Harvard style referencing used in para 2 for convenience):
1: Conventions will not be enforced by courts. Though they are intended to be binding upon those to whom they apply, conventions must therefore be distinguished from the legal rules through which governments are regulated. This is not to say that courts will not recognize the existence of conventions, or that judges will not occasionally refer to the existence of a convention in determining legal liability. Rather, it is to say that accountability for the conventions will be a political matter.

And:

2: Conventions will not be enforced by courts (Dicey). Though they are intended to be binding upon those to whom they apply – ‘they have to be followed’ (Jennings) - conventions must therefore be distinguished from the legal rules through which governments are regulated. This is not to say that courts will not recognize the existence of conventions (Miller), or that judges will not occasionally refer to the existence of a convention in determining legal liability (AG v Jonathan Cape). Rather, it is to say that accountability for the conventions will be a political matter: ‘Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers’ (R (Miller) v Secretary of State for Exiting the European Union).

Both paragraphs are reasonably accurate. Both say almost exactly the same things. But the second paragraph demonstrates a knowledge of the relevant case law and commentary, and – in the selected use of short quotes – is able to show to the reader a degree of specificity that the first paragraph cannot. Adding depth takes more time and words, of course, but will make a marked difference to the overall product. Combine depth with a logical structural backbone and you will be well on the way to writing a good essay.

Solution

Introduction

The constitution of the UK is unlike the constitution of other countries as it lacks a written or codified constitution. The essay aims to demonstrate the importance of conventions for the successful implementation of the constitution and the ways the UK constitution implementation is different from other countries. The essay will provide supportive evidence on the fact that uncertainty in conventions is one of the key factors affecting the proper implementation and scope of the UK constitution and about is unconstitutional behvaiour. The essay is presented on a systematic structure, in which the key parts are demonstrated- constitution and importance of the constitution, characteristics of UK constitution, the difference of UK constitution from other countries, the role of conventions in UK constitution and pros and cons of UK constitution.

Constitution and importance of constitution

A constitution is the body of principles and laws that guides the operation and organization of the state. The fundamental nature of the constitution is to support and shape the state, and the constitution is longstanding that is difficult to change. It is a social, legal, and political instrument that ensures human rights and develops the legal landscape. There are two forms of the constitution written and unwritten. In most countries, the written constitution is followed, and the least part of the legal structure is based on unwritten norms. The unwritten and uncodified nature of the constitution of UK indicates towards unconstitutional behaviour in the overall legal structure. In countries such as the UK, Israel, and New Zealand, the constitution is unwritten. The constitution provides the political and legal basis for enacting laws.

Characteristics of UK constitution

One of the first and most crucial characteristics of the UK constitution is it is mostly unwritten. The UK constitution is mostly unwritten, which means it is not documented well, not written, or precise, which is major reflection of its unconstitutional behaviour. There are some written parts such as parliamentary statues, historical documents, constitutional characters, and judicial decisions. UK constitution is evolutionary and is known as unbroken continuity of development. UK constitution is an example of a flexible constitution, and the flexibility element is based on adjustability and adaptability. In the constitution of the UK, the executive means the government who runs the country. The system of the executive is based on the parliamentary system rather than the presidential system. In the UK constitution, the executive is the main ruler who runs the country and holds lots of power. There are many debates on the UK constitution over time as it has an unwritten and uncodified constitution that works differently from other countries. Monarchy is one of the key components of the parliament. Queen in the parliament is the monarchy component and possesses an unchallengeable power. In the last century, there have been many acts of parliament that are considered on constitutional grounds to develop constitutional legislation. Many arguments are presented over time that the UK should have a written constitution, and the written constitution should be prepared in such a way that it engages everyone, not only based on the perceptions of parliamentarians and legal experts, but the British judiciary is somehow not able to consider the act of parliament as an unconstitutional behaviour. Elliot Bulmer and Paul Bickley (2019) presented their view on the fact that a written constitution is crucial to ensure a stable legal framework in a country, which indicates that UK system is somehow unconstitutional in nature. The recent tactical prorogation of government indicates an executive power manipulation. The case of Cherry/Miller v The Prime Minister (2019) is a joint constitutional case based on the power limitation of royal prerogative. The government's prerogative action in foreign affairs cannot be used to change the law.

Difference of UK constitution from other countries

The constitution of Britain is different from other countries' constitutions, which is basically the accumulation of conventions, statutes, treaties, and judicial decisions. The parliament enacts the law using the crown power, and the law enacted by the parliament is unchangeable by other bodies. The sovereignty of parliament is considered the key principle of the British constitution. In the UK constitution, the conventions are unwritten practices, and statutes are law and are the highest form of a law passed by parliament, which is one of the major examples of UK’s unconstitutional behaviour. There is no such document that reflects the UK constitution, so the politicians and lawyers rely on constitutional authorities. There are two key problems raised in such an uncodified constitution- easier to change at any time, which indicates instability, and difficult to know the exact state of the constitution. There are many constitutional reforms conducted in the UK constitution that indicate the flexibility in the constitution.

Convention is a key part of the UK's unwritten constitution

The key purposes of a constitutional convention are to develop and promote proposals for constitutional reforms. In the UK constitution, the convention is presented as an unwritten understanding regarding how the parliament should act. One of the conventions of the UK constitution is the sewel convention that is applicable when the parliament legislates on a specific matter. The UK parliament usually does not take such a step without relevant devolved institutions passing such consent motions. In the UK constitution, the uses of the convention are mostly for reform purposes, while in other countries, the use of convention is for other purposes too. The reforms in the convention model of the UK will be beneficial for the constitution. The British constitution has always been filled with contradictions, anomalies, and puzzles. The specification is one of the key issues in the UK constitution due to the lack of written convention. A written and proper structural model for the constitutional convention is necessary for the UK as the existing reforms that are made based on the unclear idea about the need for reforms require more clarity and to eliminate its unconstitutional behaviour. A fair and written constitutional convention will ensure that all the parts of the union are treated uniformly and fairly. The Democratic audit of 2012 in the UK indicates that coherent settlement in the UK is still lacking, which can create future problems in British democracy.

There are many opposing views regarding the proper constitutional convention in the UK. Chloe Smith MP rejected the constitutional convention idea by focusing on the fact that economic challenges are the top priority for the UK, so at the present moment, a change in the existing model of the convention is somehow difficult. There are other opinions that are presented against the constitutional convention, and most of them point towards the political realities to justify the fact. Political support is one of the key contributing factors for the proper implementation of constitutional changes, and in the UK, political support is somehow lacking. In other countries, constitutional conventions are successfully taken place due to strong political support. In the UK constitution, where the role of the executive is significant, the weak convention and unwritten constitution is a major problem for the overall legal framework as well as the roots of unconstitutional behaviour.

Pros and cons of UK constitution

There are different pros and cons of an unwritten constitution, like the UK constitution, which reflects whether the UK constitution is in urgent need of change or not. The key advantages of an unwritten constitution are- flexibility, dynamic, and evolving in nature. There are many disadvantages attached to the UK constitution as well, and one of the major disadvantages is UK constitution has a number of sources for reform, due to which it is less accessible and less transparent. The flexible nature of the UK constitution includes multiple interpretations, which creates uncertainty. The powers of judicial branches, executive and legislative branches are not well defined, which leads to conflict between different pillars of government, ambiguity, and uncertainty. Unwritten constitutions contain some difficulties as they are more reliant on the convention. A written constitution acts as an educative function and allows the general public to refer to and know about their constitutional rights. Brian Christopher Jones supports an opposite fact based on the importance of the written constitution and presents the view that there is no such huge difference between the written and unwritten constitution's performance. The UK constitution is based on conventions, legislation, common law, and parliamentary procedure. Even without the written constitution in the UK, parliamentary sovereignty is highly established, and no intentional lower ranking for the legislator and the statute takes place.

The governmental institutions in the UK are responsive and accountable to people, and the legislation in the UK system holds power. Despite several differences in the unwritten convention of the UK, it can be said that there are no such huge differences in terms of the performance of the constitution as well as its benefits on the overall legal system of the UK. In the UK constitution, parliament is the sole of the constitution, but in actual parliament cannot act solely as the main significant factor for the domestic constitution development. Despite having certain advantages of an unwritten constitution, the inconsistency and lack of transparency indicate that UK requires a written constitution to strengthen the legal control and develop the constitution based on individual needs rather than a guide of legal experts.

Conclusion

The fact presented in the essay indicates that even if the UK constitution has certain advantages, but a written constitution is more clear, transparent, and consistent compared to an unwritten and uncodified constitution. There are different advantages and disadvantages of an unwritten constitution, and the disadvantages of an unwritten constitution seem more peculiar in the UK constitution. The characteristics of the UK constitution are different in nature compared to the written constitution of other countries and it is unconstitutional in nature. There are facts presented in the essay that supports and are against the UK constitution. There are problems identified in the use of convention as well as the clarity of the constitution, and based on those facts, it can be concluded that the unwritten constitution of the UK requires a change for better constitutional implementation.

References

Bailii.org, 'Miller, R (On The Application of) V The Prime Minister [2019] UKSC 41 (24 September 2019)' (Bailii.org, 2021) <https://www.bailii.org/uk/cases/UKSC/2019/41.html> accessed 22 November 2021

Bamforth N, 'Current Issues in United Kingdom Constitutionalism: An Introduction' (academic.oup.com, 2021)

Blackburn R, 'Britain's Unwritten Constitution' (Bl.uk, 2015) <https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution> accessed 22 November 2021

Bulmer E, and Bickley P, 'Do We Need A Written Constitution?' (Theos Think Tank, 2019) <https://www.theosthinktank.co.uk/comment/2019/10/24/do-we-need-a-written-constitution> accessed 22 November 2021

Hedling N, 'The Fundamentals Of A Constitution' (Idea.int, 2017) <https://www.idea.int/sites/default/files/publications/the-fundamentals-of-a-constitution.pdf> accessed 22 November 2021

Jones B, 'What’S So Great About A Written Constitution?' (The Atlantic, 2021) <https://www.theatlantic.com/ideas/archive/2020/10/written-constitutions/616628/> accessed 22 November 2021

Publications.parliament.uk, 'Do We Need A Constitutional Convention For The UK?' (Publications.parliament.uk, 2021) <https://publications.parliament.uk/pa/cm201213/cmselect/cmpolcon/371/371.pdf> accessed 22 November 2021

Renwick A, and Hazell R, 'Blueprint For A Uk Constitutional Convention' (Ucl.ac.uk, 2021) <https://www.ucl.ac.uk/constitution-unit/sites/constitution-unit/files/ccblueprint-2.pdf> accessed 22 November 2021

Ucl.ac.uk, 'What Is The UK Constitution?' (The Constitution Unit, 2021) <https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitution> accessed 22 November 2021