Constitution of the United Kingdom

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The Constitution of the United Kingdom is the uncodified body of law and convention under which the United Kingdom is governed. Because the UK has no single codified documentary constitution along the lines of the Constitution of the United States, it is often said that the country has an "unwritten constitution".[1] However, the majority of the British constitution does exist in the written form of statutes, court judgments and European treaties. The constitution does have some unwritten sources, including parliamentary constitutional conventions (more than most countries except New Zealand and Israel) and the royal prerogatives.

The bedrock of the British constitution is the doctrine of Parliamentary sovereignty, according to which the statutes passed by Parliament are the UK's supreme and final source of law. It follows that Parliament can change the constitution simply by passing new Acts of Parliament. However UK membership of the European Union the European Communities Act 1972 means the UK applies all EU law (and disapplies any provisions of its own which conflict) that it passes in common with other member states.[2] Changing attitudes may also be seen among the judiciary: for example, the judgments of the Court of Appeal and the House of Lords in the Jackson litigation arising out of the Hunting Act 2004 indicate that senior judges may no longer necessarily be prepared to view Acts of Parliament as sacrosanct.[3] These developments are not without their opponents.

Contents

[edit] Sources

[edit] Acts of Parliament

Acts of Parliament are laws (statutes) that have received the approval of the Sovereign, the House of Lords (in most cases), and the House of Commons. It is unheard-of in modern times for the Sovereign to refuse to assent to a bill passed by the two Houses, though the possibility was reportedly contemplated in relation to the Irish Home Rule Act 1914.

Acts of Parliament are among the most important sources of the constitution. According to the traditional view, Parliament has the ability to legislate however it wishes on any subject it wishes. For example, most of the iconic mediaeval statute known as Magna Carta has been repealed since 1828. It has traditionally been the case that the courts are barred from questioning any Act of Parliament, a principle that can be traced back to the mediaeval period.[4] On the other hand, this principle has not been without its dissidents and critics over the centuries, and attitudes among the judiciary in this area may be changing.[5]

[edit] Treaties

Treaties do not, on ratification, automatically become incorporated into UK law, though they are still binding on the United Kingdom in international law. Important treaties have, however, been incorporated into domestic law by means of Acts of Parliament. This applies in particular to the treaties associated with the European Union and its predecessors, a process that started with the European Communities Act 1972.

The European Convention on Human Rights has also to a considerable extent been incorporated into domestic law through the Human Rights Act 1998.

[edit] EU law

In 1963, the European Court of Justice ruled in the case of Van Gend en Loos that the European Economic Community (as it then was) represented a "new legal order" over and above the domestic legal systems of its Member States. When the UK joined the EEC in 1973, it became part of that legal order -- though the fact that British integration with the EU has been brought about through Acts of Parliament raises the possibility that Parliament could, as a matter of British law, pass further legislation unilaterally withdrawing the UK from the Union, or selectively barring the application of European law within the UK.

[edit] Common Law

As the United Kingdom uses the common law legal system, precedents established by judges also form a source of the constitution. Common Law or Judicial precedent refers to the source of developed law where past judgements and decisions of Judges establishes law - on a basis of legal principles and reasoning - for future Judges and their respective courts to follow; common to every private citizen. Therefore, it is a rule of law established by the appellate courts - occupied by senior and experienced judges of the judicial bench - in an earlier cases which serves as binding or persuasive precedent in all subsequent cases tried in courts of a lower jurisdiction that are legally similar in principle. Such law is not the product of the legislative process, but a reflect of the accumulated wisdom mainly established within the appellate courts - occupied by senior and experienced judges of the judicial bench - of the past which binds judges into acceptance of such legal principles. Also known as case-law and it is the most primary and major source of law both historically and to date in the English Legal System, and is the stem of many laws concerning civil rights such as the freedom of speech and the freedom of movement.

[edit] Conventions

Many British constitutional conventions are ancient in origin, though others (like the Salisbury Convention) date from within living memory. Such conventions, which include the duty of the Sovereign to act on the advice of his or her ministers, are not formally enforceable in a court of law; rather, they are primarily observed "because of the political difficulties which arise if they are not."[6]

[edit] Royal Prerogative

The royal prerogative is the collective name for a collection of powers belonging to the Sovereign which have no statutory basis. In practice, by convention, most of the prerogatives are now directly exercised by ministers, or at any rate on the advice of ministers.

The precise extent of the royal prerogative has never formally been delineated, but it includes the following powers:

  • The power to make war and peace
  • The power to summon, prorogue and dissolve Parliament
  • The power to regulate the Civil Service
  • The power to ratify treaties
  • The power to issue passports

The most important prerogative still personally exercised by the Sovereign is considered to be the appointment and dismissal of Prime Ministers. The last time this reserve prerogative was exercised by the monarch without reference to the Cabinet was with the appointment of Harold Wilson as Prime Minister in February 1974, despite his party not having a majority in the House of Commons. Queen Elizabeth II exercised her prerogative after extensive consultation with the Privy Council.

The Royal Prerogative is not unlimited; this was established in the Case of Proclamations (1611), which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives.

[edit] Works of authority

Works of authority is the formal name for works that are sometimes cited as interpretations of aspects of the UK constitution. Most are works written by nineteenth- or early-twentieth-century constitutionalists, in particular A.V. Dicey, Walter Bagehot and Erskine May.

[edit] Flexibility

Unlike France, Ireland, the United States and many other countries, the United Kingdom has never been presented, in the post-Enlightenment period, with the need or opportunity of devising a new constitutional settlement from scratch. The UK's last serious constitutional upheaval was the "Glorious Revolution" of 1688-89, and the UK's last approximation to a written and codified constitution was the Cromwellian "Humble Petition and Advice" (1657-1660).

The fact that the modern British constitution has emerged from an "organic" process of evolution dating back to the Middle Ages, rather than through revolution and by design, has given it (according to one's perspective) either a valuable flexibility or a dangerous looseness. On the one hand, its loose texture arguably makes it responsive to political and social change, especially since many of its principles are simply conventions. On the other hand, the absence of mechanisms for entrenchment means that far-reaching changes could in theory be made without popular support.

Until recently, there was no modern statute or document that attempted to codify the rights of citizens (e.g. freedom of speech), in part because of the doctrine of negative rights, under which Britons were simply deemed to enjoy the right to do anything that was not specifically prohibited. The introduction of the European Convention on Human Rights in 1950 was held to have limited consequences for British law, since the rights protected by the Convention were said already to be protected by British common law -- a stance which can be seen either as reflecting the high status of civil rights in the UK or as evidencing an unjustified degree of complacency. The Convention became directly enforceable in the British courts under the Human Rights Act 1998, though the courts are still not permitted directly to invalidate statutes that conflict with its provisions.

[edit] Key principles

The key principles of the constitution are its underlying features. The two most important principles of the British constitution were first established to exist as the "twin pillars" of the constitution by A.V. Dicey, in his work An Introduction to the Study of the Law of the Constitution (1885). They are that the constitution is built on the twin equal principles of Parliamentary sovereignty and the rule of law. The former means that Parliament is the supreme law-making body; it alone can make legislation on a national level. This is an ancient principle, and can be traced clearly from the Restoration, and before. The latter is the principle of equal application of the law: 'everyone is equal before the law'. Although the theory is certainly ancient – from the Magna Carta, 1215 – in practice equal application of the law to every subject or citizen in the state only seriously developed from the nineteenth century. Dicey's "twin pillars" interpretation is a legalistic interpretation, and has been criticised by commentators writing about the decline of Parliament's independence and the dominance of the executive in policy making. Though political interpretations of the UK constitution have changed much since Dicey's era, there is no consensus on an alternative legal interpretation.

Another important principle is the concept of a unitary state, which is a corollary of Parliamentary sovereignty, and means that unlike in federal or confederal systems, sovereignty resides only at the centre of the state. The power of local and devolved bodies are totally dependent on Acts of Parliament, they could be abolished completely by Parliament if it wished.

Constitutional monarchy is a key principle, meaning that although the monarch technically rules, in practice she does not, but instead has a ceremonial role only. This principle traces from Restoration, and by the time Walter Bagehot wrote that the monarchy was the 'dignified parts' of the constitution, the modern situation had been established. However, this is tempered by the fact that Parliament technically derives its authority from the Crown by the implicit consent of the monarch.

Following the accession of the UK to European Economic Community (now the European Union) in 1973, the UK became bound by European law and more importantly, the principle of the supremacy of European Union law. According to this principle, first outlined by the European Court of Justice in 1964 in the case Costa v. ENEL, the laws of Member States that conflict with valid laws of the European Union must be disapplied by the national courts. The effect of this principle and its curtailment of the doctrine of parliamentary supremacy were famously highlighted in the Factortame case in which part of the Merchant Shipping Act 1988 was found to be contrary to European Union law. The competing principles of primacy of European Union law and parliamentary supremacy were reconciled in the case of Thoburn v Sunderland City Council where the Divisional Court ruled that the European Communities Act 1972, the Act incorporating European Union law into the national legal order, could not be repealed simply by the passing of subsequent legislation incompatible with European law. In recognising that the 1972 Act formed part of a category of special "constitutional statutes", the court nevertheless underlined that it remained open for Parliament to expressly repeal the Act.[7]

[edit] Summary list

[edit] Government and Parliament

The British constitution is parliamentary in character, and the executive ("Her Majesty's Government") is drawn from the legislature, Parliament. The doctrine of separation of powers is not as prominent in the British constitution as it is elsewhere.

Since the Government is "fused" with Parliament, and virtually every government has a majority, there is no formal restraint on the legislative power of the executve. This is broken only if Members of Parliament vote against a government bill, which, due to a strong whip system, happens extremely rarely -- the two most recent such votes occurred in 1986 and 2005. The phrase elective dictatorship was coined by former Lord Chancellor Quintin Hogg in 1976 to highlight the enormous potential power of government afforded by the constitution.[8] This problem (if it is regarded as such) is relatively recent in its historical origin, since Parliament previously functioned (for example, after the "Glorious Revolution" of 1688-89) as a brake on the power of the monarch, who at that time was an independent political actor in his or her own right.

In practice, some principles and elements of the constitution, such as the rule of law, are so ancient and ingrained in the UK's political culture that they would be extremely difficult to abolish. Parliamentary sovereignty and the rule of law have been widely considered the most important principles of the constitution since the nineteenth century, and attempts to substantially circumvent them would likely be met with backlash by the electorate, or even the monarch (who appears to retain certain reserve powers).

[edit] Disputes about the nature of the UK Constitution

While some assert that the UK does not have a constitution, the vast majority of theorists[who?] describe the 1688 compromise between crown and parliament as a constitution, which is the basis of the textbook view described in this article. The legal scholar Eric Barendt argues that the uncodified nature of the United Kingdom constitution does not mean it should not be characterised as a "constitution", but also claims that the lack of an effective separation of powers, and the fact that parliamentary sovereignty allows Parliament to overrule fundamental rights, makes it to some extent a 'facade' constitution.[9]

In one article, Lord Scarman presents a spirited argument for a written constitution for the UK, but still refers to the 1688 compromise and resulting acts of parliament as a constitution.

The UK Constitution has no fundamental written source, and is ever changing. It relies much on unwritten convention. Dicey himself identified that ultimately "the electorate are politically sovereign," and Parliament is legally sovereign. Barendt argues that the greater political party discipline in the House of Commons that has evolved since Dicey's era, and the reduction in checks on governmental power, has led to an excessively powerful government that is not legally constrained by the observance of fundamental rights.[9] A Constitution would impose limits on what Parliament could do without a legal majority. To date, the Parliament of the UK has no limit on its power other than the possibility of extra-parliamentary action (by the people) and of other sovereign states (pursuant to treaties made by Parliament and otherwise).

It has been claimed that the unwritten British Constitution is a refusal by people in power to communicate to those subject to that power the extent of that power and the rights available to prevent and/or effectively remedy the abuse of that power. Consequently, it is contended, that the unwritten British constitution constitutes a conspiracy against the British public.[10][11] This is not a widely-held view. Support for a written constitution has been associated in particular with the Liberal Democrats and the pressure group Charter 88, though recently senior Labour government figures, including Gordon Brown and Jack Straw, have indicated that they are receptive to the idea.[citation needed] Proponents of a codified constitution and Bill of Rights argue it would strengthen the legal protection of democracy and freedom. According to one analysis:

“Under a written (codified, judiciable) Constitution, no group of temporarily elected politicians would be able to unilaterally transfer power from Parliament to external authorities not elected by the people or make any other significant changes in the system of governance. Meanwhile, a new/comprehensively amended Bill of Rights would forbid a far wider range of official actions than the original 17th century Bill (etc.). As in the US and other countries, an independent Supreme Court would have the absolute power to nullify any parliamentary legislation or government policy that violated the basic law.”[12]

[edit] Key statutes and conventions

One consequence of the principle of parliamentary sovereignty is that there is no hierarchy among Acts of Parliament: all parliamentary legislation is, in principle, of equal validity and effectiveness. However, the judgment of Lord Justice Laws in the Thoburn case in 2002 indicated that there may be a special class of "constitutional statutes" such as Magna Carta and the Human Rights Act 1998 which have a higher status than other legislation. This part of his judgment was "obiter" (i.e. not binding) -- and, indeed, was not uncontroversial. It remains to be seen whether the doctrine will be accepted by other judges.

[edit] Selected key statutes

[edit] Some important conventions

  • Relating to monarchy
    • The Sovereign shall grant the Royal Assent to all Bills passed by Parliament (the Royal Assent was last refused by Queen Anne in 1708, for the Scottish Militia Bill 1708, on the advice of her ministers).[13]
    • The monarch will not dissolve Parliament without the advice of the Prime Minister.
    • The monarch will ask the leader of the dominant party in the House of Commons to form a government, and if there is no dominant party, the leader most likely to be able to form a government.
    • The monarch will ask a member of the House of Commons (rather than the House of Lords or someone outside Parliament) to form a government. It remains possible, however, for a caretaker Prime Minister to be drawn from the House of Lords.
  • All ministers are to be drawn from the House of Commons or the House of Lords.
  • The House of Lords will accept any legislation that was in the Government's manifesto (the 'Salisbury Convention') – in recent years this convention has been broken by the Lords, though the composition of the Lords (which was the justification for the convention) has radically changed since the convention was introduced.
  • Individual Ministerial Responsibility
  • Collective Ministerial Responsibility

[edit] Recent constitutional reform

The Labour government under Prime Minister Tony Blair instituted sweeping constitutional reforms in the late 1990s and early-to-mid 2000s. The effective incorporation of the European Convention on Human Rights into UK law through the Human Rights Act 1998 has granted citizens specific positive rights and given the judiciary some power to enforce them. The courts can put pressure on Parliament to amend primary legislation that conflicts with the Act by means of "Declarations of Incompatibility" - however only of an advisory capacity as Parliament is not bound to amend the law nor can the judiciary avoid any statue - and can refuse to enforce, or "strike down", any incompatible secondary legislation. Any actions of government authorities that violate Convention rights are illegal except if mandated by an Act of Parliament.

Recent reforms have also decentralised the UK by setting up a devolved parliament in Scotland and assemblies in Wales and Northern Ireland. The UK had previously been an essentially unitary state since its foundation in 1801, though Scotland had always had a separate legal system and Ireland had repeatedly been subject to attempts to devolve power from London. Some commentators have stated the UK is now a "quasi-federal" state: it is only "quasi" federal, because (unlike the other components of the UK) England has no legislature of its own, and is directly ruled from Westminster. Attempts to extend devolution to the various regions of England have stalled, and the fact that Parliament functions both as a British and as an English legislature has created some dissatisfaction (see, for example, the article on the "West Lothian question").

These reforms have undermined the concept of Parliamentary sovereignty somewhat, even though Parliament could still abolish the devolved assemblies and repeal the Human Rights Act. In reality such action is unlikely so these restrictions on the legislative power of Parliament are likely to remain on the statute book for the time being.

The passing of an unprecedented Freedom of Information Act has challenged the traditional British notion that governments should not disclose too many details of their operations.

Recent changes also include the Constitutional Reform Act 2005 which alters the structure of the House of Lords to separate its judicial and legislative functions. For example the legislative, judicial and executive functions of the Lord Chancellor are now shared between the Lord Chancellor (executive), Lord Chief Justice (judicial) and the newly created post of Lord Speaker (legislative). The presence of Law Lords (members of the judiciary) in the House of Lords, will be removed by moving the Lords to the new Supreme Court of the United Kingdom by 2009.

[edit] See also

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[edit] References

  1. ^ Barnett, H, Constitutional and Administrative Law, ed5 (2005, London: Cavendish) at 9. Conversly, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments", id.
  2. ^ see, Van Gend en Loos case, Costa v. ENEL in EU law and the Factortame litigation in the House of Lords
  3. ^ For a critical perspective on these attitudes, see Prof. Conor Gearty's 2007 lecture "Are judges now out of their depth?".
  4. ^ See Prof. Jeffrey Goldsworthy's study The Sovereignty of Parliament, OUP 1999.
  5. ^ See in particular Jackson and others v Attorney General [2005] UKHL 56 http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack-1.htm
  6. ^ Bradley and Ewing, p.24
  7. ^ Thoburn v Sunderland City Council [2002 EWHC 195 (Admin), [2003] QB 151 ("Metric Martyrs" ruling) 18 Feb 2002 (Extract)]
  8. ^ "Elective dictatorship" (21 October 1976). The Listener: 496-500. 
  9. ^ a b Barendt, Eric, Is there a United Kingdom Constitution, 1997, Oxford Journal of Legal Studies (vol. 137)
  10. ^ The Independent - 14 Feb 2008 - Why doesn't the UK have a written constitution, and does it matter?
  11. ^ The Cornish Stannary Parliament and the unwritten British Constitution
  12. ^ Abbott, Lewis F. British Democracy: Its Restoration & Extension, Industrial Systems Research Publications, Manchester (UK), 2006. ISBN 978-0-906321-31-7. Page 4.[1]
  13. ^ Smith, David L. "Change & Continuity in 17th Century English Parliaments". History Review, 2002. p. 1.

[edit] External links

[edit] Further reading

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