Constitution of the United Kingdom

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The United Kingdom does not have one specific constitutional document named as such. Instead, the so called constitution of the United Kingdom is a sum of laws and principles that make up the body politic of the UK. This is sometimes referred to as an "unwritten" or uncodified constitution.[1][2] The British constitution primarily draws from four sources: statute law (laws passed by the legislature), common law (laws established through court judgments), parliamentary conventions, and works of authority.[1] Similar to a written constitution, this sum also concerns both the relationship between the individual and the state, and the functioning of the legislature, the executive and judiciary.

Since the Glorious Revolution of 1688, the concept of parliamentary sovereignty has been the bedrock of the British legislative constitution, that is, the statutes passed by Parliament are the supreme and final source of law in the UK.[3] It follows that Parliament can change the constitution simply by passing new statutes through Acts of Parliament.[4] There has been some debate about whether parliamentary sovereignty remained intact[5] in the light of the UK's membership in the European Union (EU), an argument that was used by proponents of leaving the EU in the 2016 referendum vote ("Brexit").[6] Another core constitutional principle, the rule of law, is a phrase that was popularized by legal scholar A. V. Dicey in his 1885 work, Introduction to the Study of the Law of the Constitution, which is recognized as a work of authority on the constitution by the British Parliament.[1]

Constitutional principles

Sources

One of several shelves full of books about the UK constitution at a law library

Acts of Parliament are bills which have received the approval of Parliament – that is, the Monarch, the House of Lords and the House of Commons. On rare occasions, the House of Commons uses the "Parliament Acts" (the Parliament Act 1911 and the Parliament Act 1949) to pass legislation without the approval of the House of Lords. It is unheard of in modern times for the Monarch to refuse to assent to a bill, though the possibility was contemplated by George V in relation to the fiercely controversial Government of Ireland Act 1914.[7] Acts of Parliament are among the most important sources of the constitution. According to the traditional view, Parliament has the power to legislate however it wishes on any subject it wishes. For example, most of the iconic medieval statute known as Magna Carta has been repealed since 1828, despite previously being regarded as sacrosanct. 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 medieval period.[8] 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.[9] 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, the Human Rights Act 1998, the European Communities Act 1972, the Acts of Union and Bill of Rights which have a higher status than other legislation. This part of his judgment was "obiter" (i.e. not binding) – and, indeed, was controversial. It remains to be seen whether the doctrine will be accepted by other judges.

Treaties do not, on ratification, automatically become incorporated into UK law. Important treaties have been incorporated into domestic law by means of Acts of Parliament. The European Convention on Human Rights, for example, was given "further effect" into domestic law through the preamble of the Human Rights Act 1998. Also, the Treaty of Union of 1707 was important in creating the unitary state which exists today. The treaty was between the governments of England and Scotland and was put into effect by two Acts of Union which were passed by the Parliaments of both nations. The Treaty, along with the subsequent Acts, brought into existence the Kingdom of Great Britain, uniting the Kingdom of England and the Kingdom of Scotland.

Common law legal systems exist in Northern Ireland and in England and Wales, but not in Scotland which has a hybrid system (see Scots law) which includes a great deal of Common Law. Court judgments also commonly form a source of the constitution: generally speaking in English Law, judgments of the higher courts form precedents or case law that binds lower courts and judges. However Scots Law does not accord the same status to precedent, and judgments in one legal system do not have a direct effect in the other legal systems.[10] Historically important court judgments include those in the Case of Proclamations, the Ship money case and Entick v Carrington, all of which imposed limits on the power of the executive. A constitutional precedent applicable to British colonies is Campbell v. Hall, which effectively extended those same constitutional limitations to any territory which has been granted a representative assembly.

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 Monarch 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."[11]

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 19th or early 20th century constitutionalists, in particular A. V. Dicey, Walter Bagehot and Erskine May.

Parliamentary supremacy

Parliamentary sovereignty means judges cannot invalidate legislation.[12] But in practice the UK consents to British and European courts to review legislation to comply with international standards under the Human Rights Act 1998, and consents to follow EU law under the European Communities Act 1972.

In the 19th century, A. V. Dicey, a highly influential constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885). These pillars are the principle of Parliamentary sovereignty and the rule of law. Parliamentary sovereignty means that Parliament is the supreme law-making body: its Acts are the highest source of English law. There has been some academic and legal debate as to whether the Acts of Union 1707 place limits on parliamentary supremacy.[13][14][15]

According to the doctrine of parliamentary sovereignty, Parliament may pass any legislation that it wishes. Historically, "No Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea."[16] By contrast, in countries with a codified constitution, the legislature is normally forbidden from passing laws that contradict that constitution: constitutional amendments require a special procedure that is more arduous than that for regular laws.[17]

There are many Acts of Parliament which themselves have constitutional significance. For example, Parliament has the power to determine the length of its term. By the Parliament Acts 1911 and 1949, the maximum length of a term of parliament is five years but this may be extended with the consent of both Houses. This power was most recently used during World War II to extend the lifetime of the 1935 parliament in annual increments up to 1945. Parliament also has the power to change the make-up of its constituent houses and the relation between them. Examples include the House of Lords Act 1999 which changed the membership of the House of Lords, the Parliament Acts 1911 and 1949 which altered the relationship between the House of Commons and the House of Lords, and the Reform Act 1832 which made changes to the system used to elect members of the House of Commons.

The power extended to Parliament includes the power to determine the line of succession to the British throne. This power was used to pass His Majesty's Declaration of Abdication Act 1936, which gave constitutional effect to the abdication of Edward VIII and removed any of his putative descendants from the succession; and most recently to pass the Succession to the Crown Act 2013, which changed the succession to the throne to absolute primogeniture (not dependent on gender) and also removed the disqualification of marrying a Roman Catholic. Parliament also has the power to remove or regulate the executive powers of the Monarch.[18]

Parliament consists of the Monarch, the House of Commons and the House of Lords. In recent times the House of Commons has consisted of more than 600 members elected by the people from single-member constituencies under a first past the post system. Following the passage of the House of Lords Act 1999, the House of Lords consists of 26 bishops of the Church of England (Lords Spiritual), 92 representatives of the hereditary peers and several hundred life peers. The power to nominate bishops of the Church of England and to create hereditary and life peers is exercised by the Monarch, on the advice of the prime minister. By the Parliament Acts 1911 and 1949 legislation may, in certain circumstances, be passed without the approval of the House of Lords. Although all legislation must receive the approval of the Monarch (Royal Assent), no monarch has withheld such assent since 1708.[19]

The House of Commons alone possesses the power to pass a motion of no confidence in the Government, which requires the Government either to resign or to seek fresh elections (this principle was codified in the Fixed-term Parliaments Act 2011—see below for more details). Such a motion does not require passage by the Lords or Royal Assent. The House of Lords has been described as a "revising chamber".[20][21]

Parliament traditionally also has the power to remove individual members of the government by impeachment (with the Commons initiating the impeachment and the Lords trying the case), although this power has not been used since 1806. By the Constitutional Reform Act 2005 it has the power to remove individual judges from office for misconduct.

Additionally, Dicey has observed that the constitution of Belgium (as it stood at the time) "comes very near to a written reproduction of the English constitution."[22]

Rule of law

The rule of law was AV Dicey's second core principle of the UK constitution.[23] This is the idea that all laws and government actions conform to principles. These principles include equal application of the law: everyone is equal before the law and no person is above the law, including those in power. Another is that no person is punishable in body or goods without a breach of the law: as held in Entick v Carrington, persons are free to do anything, unless the law says otherwise; thus, no punishment without a clear breach of the law.

Unity and devolution

The countries of the United Kingdom.

The United Kingdom comprises four countries: England, Wales, Scotland and Northern Ireland.[24] Nevertheless, it is a unitary state, not a federation (like Australia, Argentina, Brazil, Canada, Germany, India, Russia or the United States), nor a confederation (like pre-1847 Switzerland or the former Serbia and Montenegro). Parliament contains no chamber comparable to the United States Senate (which has equal representation from each state of the USA), the Brazilian Senate, which has three senators from each state, or the German Bundesrat (whose membership is selected by the governments of the States of Germany).

Scotland, Wales and Northern Ireland have devolved legislatures and executives, while England does not. The authority of these devolved legislatures is dependent on Acts of Parliament and, although it is politically very unlikely, they can in principle be abolished at the will of the Parliament of the United Kingdom.[25][26][27] However, the acts that created the devolved institutions are considered constitutional statutes that are not subject to implied repeal.[28] Constitional law professors have described this as a transfer "real power" that alters the sovereignty of the UK Parliament to a "supervisory" role over the devolved legislatures in regard of devolved matters.[29] Futhermore, the Scotland Act 2016 expresses the constitutional intent that the Scottish Parliament and Scottish Government are permanent and declares that they are not to be abolished except following a referendum in Scotland.[30][31] A historical example of a legislature that was created by Act of Parliament and later abolished is the Parliament of Northern Ireland, which was set up by the Government of Ireland Act 1920 and abolished, in response to political violence in Northern Ireland, by the Northern Ireland Constitution Act 1973 (Northern Ireland has since been given another legislative assembly under the Northern Ireland Act 1998). The Greater London Council was abolished in 1986 by the Local Government Act 1985[32] and a similar institution, the Greater London Authority, was established in 2000 by the Greater London Authority Act 1999.

In England the established church is the Church of England. In Scotland, Wales and Northern Ireland, there is no state church; in Wales and Northern Ireland their respective state churches were disestablished (that is, they were not disbanded but had their "established" status abolished) by the Welsh Church Act 1914 and the Irish Church Act 1869. In Scotland, its national church had long held its independence from the state, which was confirmed by the Church of Scotland Act 1921. England and Wales share the same legal system, while Scotland and Northern Ireland each have their own distinct systems. These distinctions arose prior to and were retained after the unions according to the terms of the 1706 Treaty of Union, ratified by the 1707 Acts of Union, and the Acts of Union 1800.

The Scottish Parliament in Edinburgh is an institution created by recent devolution in the United Kingdom.

Reforms since 1997 have decentralised the UK by setting up a devolved Scottish Parliament and assemblies in Wales and Northern Ireland. The UK was formed as a unitary state, though Scotland and England retained separate legal systems. Some commentators[33] 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 (the devolved bodies are not sovereign and could, in theory at least, be repealed by Parliament – unlike "true" federations, such as the United States, where the constituent states share sovereignty with the federal government). 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 (the so-called "West Lothian question").

European Union membership

Under European Law, as developed by the ECJ, the EC Treaty created a "new legal order" under which the validity of European Union law cannot be impeded by national law; though the UK, like a number of other EU members, does not share the ECJ's monist interpretation unconditionally, it accepts the supremacy of EU law in practice.[34]:344 Because, in the UK, international law is treated as a separate body of law, EU law is enforceable only on the basis of an Act of Parliament, such as the European Communities Act 1972, which provides for the supremacy of EU law.[35][34]:344 The supremacy of EU law was confirmed by the House of Lords in the Factortame litigation, in which part of the Merchant Shipping Act 1988 was "disapplied" because it conflicted with EU law. In his judgment in Factortame, Lord Bridge wrote:

[T]he supremacy within the European Community of Community law over the national law of member states ... was certainly well established in the jurisprudence of the European Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. ... Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.[34]:367–368[36]

In 2015, the Court of Appeal disapplied parts of the State Immunity Act 1978 on the grounds that it conflicted with article 47 of the Charter of Fundamental Rights of the European Union.[37] The case concerned two workers who wished to sue the Sudanese embassy in London for violations of employment law.

On one analysis, EU law is simply a subcategory of international law that depends for its effect on a series of international treaties (notably the Treaty of Rome and the Maastricht Treaty). It therefore has effect in the UK only to the extent that Parliament permits it to have effect, by means of statutes such as the European Communities Act 1972, and Parliament could, as a matter of British law, unilaterally bar the application of EU law in the UK simply by legislating to that effect.[34][38] However, at least in the view of some British authorities, the doctrine of implied repeal, which applies to normal statutes, does not apply to "constitutional statutes", meaning that any statute that was to have precedence over EU law (thus disapplying the 1972 European Communities Act) would have to provide for this expressly or in such a way as to make the inference "irresistible".[34]:369 The actual legal effect of a statute enacted with the express intention of taking precedence over EU law is as yet unclear.[39] However, it has been stated that if Parliament were to expressly repudiate its treaty obligations the courts would be obliged to give effect to a corresponding statute:

If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision of it – or intentionally of acting inconsistently with it – and says so in express terms – then . . . it would be the duty of our courts to follow the statute of our Parliament.
— Lord Denning, Macartys Ltd v Smith [1979] ICR at p. 789[40]

In 2011 Parliament passed the European Union Act 2011 which states in clause 18 (Status of EU law dependent on continuing statutory basis): "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act."[41]

Following the accession of the UK to European Economic Community (now the European Union) in 1972, the UK became bound by European law and more importantly, the principle of the supremacy of European Union law. According to this principle, which was outlined by the European Court of Justice in 1964 in the case of Costa v. ENEL, laws of member states that conflict with EU laws must be disapplied by member states' courts. The conflict between the principles of the primacy of EU law and of parliamentary supremacy was illustrated in the judgment in Thoburn v Sunderland City Council,[42] which held that the European Communities Act 1972, the Act that initiated British involvement in the EU, could not be implicitly repealed simply by the passing of subsequent legislation inconsistent with European law. The court went further and suggested that the 1972 Act formed part of a category of special "constitutional statutes" that were not subject to implied repeal. This exception to the doctrine of implied repeal was something of a novelty, though the court stated that it remained open for Parliament to expressly repeal the Act.[43] Following the UK's referendum on EU membership in June 2016, it is politically conceivable that Parliament would now do so, but constitutional lawyers have also questioned whether such a step would be as straightforward in its legal effects as it might seem at first sight.[44][45] The Thoburn judgment was handed down only by the Divisional Court (part of the High Court), which occupies a relatively low position in the legal system.

Important conventions

Institutions

Monarchy

The United Kingdom is a constitutional monarchy, and succession to the British throne is hereditary. The monarch, or Sovereign, is the Head of State of the United Kingdom and amongst several roles is notably the Commander-in-chief of the British Armed Forces.

Parliament

Parliament is bicameral, with two houses — the House of Commons and the House of Lords; the monarch formally forms a third element of Parliament (see Queen-in-Parliament). The House of Commons, which unlike the House of Lords is democratically elected, has supremacy by virtue of the Parliament Act 1911 and Parliament Act 1949. An Act of Parliament of the United Kingdom is primary legislation and Parliament can (and does) alter the British constitution by passing such Acts.

Royal prerogative

Under the British constitution, sweeping executive powers, known as the royal prerogative, are nominally vested in the monarch. In exercising these powers the monarch normally defers to the advice of the prime minister or other ministers. This principle, which can be traced back to the Restoration, was most famously articulated by the Victorian writer Walter Bagehot as "the Queen reigns, but she does not rule". The precise extent of the royal prerogative has never formally been delineated, but in 2004, Her Majesty's Government published some of the powers, in order to be more transparent:[48]

Domestic powers
Foreign powers

The most important prerogative still personally exercised by the monarch is the choice of whom to appoint Prime Minister. The most recent occasion when the monarch has had to exercise these powers was in February 1974, when Edward Heath resigned from the position of prime minister after failing to win an overall majority at the General Election or to negotiate a coalition. Queen Elizabeth II appointed Harold Wilson, leader of the Labour Party, as prime minister, exercising her prerogative after extensive consultation with the Privy Council. The Labour Party had the largest number of seats in the House of Commons, but not an overall majority. The 2010 general election also resulted in a hung parliament. After several days of negotiations, between the parties, Queen Elizabeth II invited David Cameron to form a government on the advice of the outgoing prime minister Gordon Brown.

The monarch formerly enjoyed the power to dissolve Parliament (normally on the request of the prime minister). However, this power was explicitly removed from the monarch by the Fixed-term Parliaments Act 2011. The last monarch to dismiss a prime minister who had not suffered a defeat on a motion of confidence in the House of Commons, or to appoint a prime minister who clearly did not enjoy a majority in that House, was William IV who in 1834 dismissed the Government of Lord Melbourne, replacing him with Robert Peel (the Duke of Wellington briefly heading a caretaker ministry as Peel was on holiday in Italy at the time). Peel resigned after failing to win the 1835 General Election — prior to the 1832 Reform Act, which abolished many rotten and pocket boroughs, it would have been very unusual for a government with Royal backing to be defeated in this way.

Queen Victoria was the last monarch to veto a ministerial appointment. In 1892, she refused William Ewart Gladstone's advice to include Henry Labouchère (a radical who had insulted the Royal Family) in the Cabinet.[50] The last monarch to veto legislation passed by Parliament was Queen Anne, who withheld assent from the Scottish Militia Bill 1708. However, the possibility that a royal veto might be exercised independently by the monarch remained for at least two further centuries. Pitt the Younger resigned in 1801 when George III made clear that he would veto Catholic Emancipation, which he regarded as a breach of his oath to uphold the Church of England—the measure did not pass until 1829 when George IV was persuaded to drop his opposition. As late as 1914, George V took legal advice on withholding the Royal Assent from the Third Irish Home Rule Bill, which the Liberal government was pushing through parliament having recently removed the Lords' veto (Parliament Act 1911) and in the teeth of threatened armed resistance in Ulster. The King decided that he should not withhold the Assent without "convincing evidence that it would avert a national disaster, or at least have a tranquillizing effect on the distracting conditions of the time".[51]

The Royal Prerogative is not unlimited; this was established in the Case of Proclamations (1610), which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives. However, as part of Parliamentary Sovereignty, Parliament could create new prerogatives if it so wished regardless. Parliament has the power to remove powers from the Royal Prerogative: this was done in the Fixed-term Parliaments Act 2011 which removed the Royal Prerogative to dissolve Parliament. However, the monarch's consent is required before Parliament may pass legislation removing such powers: this was seen when the second reading of the Military Action Against Iraq (Parliamentary Approval) Bill, which would have removed the monarch's ability to authorize military action without Parliamentary approval, had to be abandoned because the monarch (on the advice of her government) refused to grant such consent.[52]

The monarch's approval ("Queen's consent") is required before Parliament may debate or pass proposed legislation affecting the Royal Prerogative, or the hereditary revenues, personal property, or personal interests of the Crown, the Duchy of Lancaster, or the Duchy of Cornwall.[53] The consent of the Duke of Cornwall (who is also the Prince of Wales) is also required before Parliament may debate or pass proposed legislation affecting the Duchy of Cornwall.[53]

Cabinet and government

It is the monarch's constitutional duty to appoint a Prime Minister who can command support of a majority in the House of Commons. When one party has an absolute majority in the House of Commons, the monarch appoints the leader of that party as prime minister. When there is a hung parliament, or the identity of the leader of the majority party is not clear (as was often the case for the Conservative Party up to the 1960s, and for all parties in the 19th century), the monarch has more flexibility in his or her choice. The monarch appoints and dismisses other ministers on the advice of the prime minister (such appointments and dismissals occur quite frequently as part of cabinet reshuffles). The prime minister, together with other ministers, form the Government. The Government often includes ministers whose posts are sinecures (such as the Chancellor of the Duchy of Lancaster) or ministers with no specific responsibilities (minister without portfolio): such positions may be used by the prime minister as a form of patronage, or to reward officials such as the chairman of the ruling party with a governmental salary.

If the Commons votes against the Government on a motion of no confidence, the Fixed-term Parliaments Act 2011 specifies that Parliament automatically dissolves unless a subsequent motion of confidence is passed within fourteen days. The Prime Minister and government would have the option of resigning in order to allow a replacement government the chance to obtain a vote of confidence within the required timeframe, or remaining in office to fight the subsequent general election.

The Government usually resigns immediately after defeat in a general election, though this is not strictly required. For example, Stanley Baldwin's government lost its majority in the general election of December 1923, but did not resign until defeated in a confidence vote in January 1924.[54]

The prime minister and all other ministers take office immediately upon appointment by the monarch. In the United Kingdom, unlike many other countries, there is no requirement for a formal vote of approval by the legislature (either of the Government as a whole or of its individual members) before they may assume office.

The prime minister and all other Ministers normally serve concurrently as members of the House of Commons or House of Lords, and are obliged by collective responsibility to cast their Parliamentary votes for the Government's position, regardless of their personal feelings or the interests of their constituents. The prime minister is normally a member of the House of Commons. The last prime minister to be a member of the House of Lords was Alec Douglas-Home; however, he resigned from the Lords and became a member of the Commons shortly after his appointment as prime minister in 1963 (for about two weeks he served as prime minister despite belonging to neither House). The last prime minister to serve a full administration from the House of Lords was Robert Cecil, 3rd Marquess of Salisbury, who served until 1902.

Thus the executive ("Her Majesty's Government") is "fused" with Parliament. Because of a number of factors, including the decline of the monarch and the House of Lords as independent political actors, an electoral system that tends to produce absolute majorities for one party in the Commons, and the strength of party discipline in the Commons (including the built-in payroll vote in favour of the Government), the prime minister tends to have sweeping powers checked only by the need to retain the support of his or her own MPs. 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.[55]

The need of a prime minister to retain the support of her own MPs was illustrated by the case of Margaret Thatcher, who resigned in 1990 after being challenged for the leadership of the Conservative Party. The strength of party discipline within the Commons, enforced by the whip system, is shown by the fact that the two most recent motions of no confidence in which a Government was defeated occurred in 1924 and 1979.

Judiciary

There are three judicial systems in the United Kingdom: that of England and Wales, that of Scotland, and that of Northern Ireland. Under the Constitutional Reform Act 2005 the final court of appeal for all cases, other than Scottish criminal, is the newly seated Supreme Court of the United Kingdom: for Scottish criminal cases, the final court of appeal remains the High Court of Justiciary. Furthermore, the Constitutional Reform Act guaranteed the independence of the judiciary, a concept that emerged from the Act of Settlement 1701.[56][57]

Vacancies in the Supreme Court are filled by the monarch based on the recommendation of a special selection commission consisting of that Court's President, Deputy President, and members of the judicial appointment commissions for the three judicial systems of the UK. The choice of the commission may be vetoed by the Lord Chancellor (a government minister). Members of the Supreme Court may be removed from office by Parliament, but only for misconduct.

Judges may not sit or vote in either House of Parliament (before the 2005 Act, they had been permitted to sit and vote in the House of Lords).

Church of England

The Church of England is the established church in England (i.e. not in Scotland, Wales or Northern Ireland). The monarch is ex officio Supreme Governor of the Church of England, and is required by the Act of Settlement 1701 to "join in communion with the Church of England". As part of the coronation ceremony, the monarch swears an oath to "maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England" before being crowned by the senior cleric of the Church, the Archbishop of Canterbury – a similar oath concerning the established Church of Scotland, which is a Presbyterian church, having already been given by the new monarch in his or her Accession Council. All clergy of the Church swear an oath of allegiance to the monarch before taking office.

Parliament retains authority to pass laws regulating the Church of England. In practice, much of this authority is delegated to the Church's General Synod. The appointment of bishops and archbishops of the Church falls within the royal prerogative. In current practice, the Prime Minister makes the choice from two candidates submitted by a commission of prominent Church members, then passes his choice on to the monarch. The Prime Minister plays this role even though they themselves are not required to be a member of the Church of England or even a Christian—for example Clement Attlee was an agnostic who described himself as "incapable of religious feeling".[58]

Unlike many states in continental Europe, the United Kingdom does not directly fund the established church with public money (although many publicly funded voluntary aided schools are run by religious foundations, including those of the Church of England). Instead, the Church of England relies on donations, land and investments.

Although it is the national church, the Church of Scotland is not a state church; this and other regards makes it dissimilar to the Church of England. Under its constitution (recognised by the Church of Scotland Act 1921), it enjoys complete independence from the state in spiritual matters. The Church in Wales and the Church of Ireland are no longer established state churches.

Citizens and the state

Civil liberties and human rights

Nationality and immigration

Police powers

Terrorism

Administrative law

Administrative law is often called "public law". Administrative law restricts the exercise of the government's power over public administration; it covers areas such as policing, prisons, urban planning, education, the environment and immigration. It ensures the exercise of the government's power takes place within a legislative framework. This means the legal responsibilities of governmental bodies are properly defined and, at the same time, the rights and interests of the country's citizens are protected from the misuse or abuse of government power over public administration.[59]

An example of administrative law in practice is the 1999 case of R. v. North and East Devon Health Authority which held that a disabled woman told by a health authority she would have a "home for life" in a facility had a substantive legitimate expectation the authority would not shut it down.

Theory

Nature of the constitution

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.[60]

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.[61]

A. V. Dicey identified that ultimately "the electorate are politically sovereign," and Parliament is legally sovereign.[62] 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.[60] A Constitution would impose limits on what Parliament could do. 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).

Proponents of a codified constitution argue it would strengthen the legal protection of democracy and freedom.[63] As a strong advocate of the "unwritten constitution", Dicey highlighted that English rights were embedded in the general English common law of personal liberty, and "the institutions and manners of the nation".[64] Opponents of a codified constitution argue that the country is not based on a founding document that tells its citizens who they are and what they can do. There is also a belief that any unwarranted encroachment on the spirit of constitutional authority would be stiffly resisted by the British people, a perception expounded by the 19th century American judge Justice Bradley in the course of delivering his opinion in a case heard in Louisiana in 1873: "England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour."[65]

Reform proposals

The Labour government under prime minister Tony Blair instituted constitutional reforms in the late 1990s and early-to-mid 2000s.[66] 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 advise Parliament of primary legislation that conflicts with the Act by means of "Declarations of Incompatibility" – however Parliament is not bound to amend the law nor can the judiciary void any statute – and it 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.

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 role of Law Lord (a member of the judiciary in the House of Lords) was abolished by transferring them to the new Supreme Court of the United Kingdom in October 2009.

Gordon Brown launched a "Governance of Britain" process when he took over as PM in 2007. This was an ongoing process of constitutional reform with the Ministry of Justice as lead ministry. The Constitutional Reform and Governance Act 2010 is a piece of constitutional legislation. It enshrines in statute the impartiality and integrity of the UK Civil Service and the principle of open and fair recruitment. It enshrines in law the Ponsonby Rule which requires that treaties are laid before Parliament before they can be ratified.

The Coalition Government formed in May 2010 proposed a series of further constitutional reforms in their coalition agreement. Consequently, the Parliamentary Voting System and Constituencies Act 2011 and the Fixed-term Parliaments Act 2011 were passed. The Acts were intended to reduce the number of MPs in the House of Commons from 650 to 600, change the way the UK is divided into parliamentary constituencies, introduce a referendum on changing the system used to elect MPs and take the power to dissolve Parliament away from the monarch. The Coalition also promised to introduce law on the reform of the House of Lords. In the referendum, the Alternative Vote system was rejected by 67% to 33%, and therefore all reforms regarding the voting system were dropped.[67] Conservatives forced the government to drop House of Lords reforms, and the Liberal Democrats said they would refuse to support changes to the boundaries of constituencies, as they believed such changes favoured the Conservatives.

History

Claude Monet's depiction of the Houses of Parliament from Westminster Bridge in 1903.

The Parliament of the United Kingdom retained the Acts passed by the Parliament of England from 1267 to 1706, the Parliament of Scotland from 1424 to 1707, the Parliament of Ireland from 1495 to 1800 and the Parliament of Great Britain from 1707 to 1800.[68] While there is no definitive list of constitutional statutes, there are certain statutes that are significant in the history of the Constitution of the United Kingdom.[69] Over time, some statutes that were once constitutional in nature have been repealed, others have been amended and remain in statute, while others are current legislation as originally enacted. None are entrenched,[4] although it is not necessarily the case that parliamentary sovereignty extends to changing the Acts of Union in 1707 and 1800 at will.[13][14][15] The European Communities Act 1972 is arguably “semi-entrenched”; for as long as the UK remains a member of European Union that Act cannot be repealed.[70]

In Scotland, the separate history of Scots law and separate constitutional documents such as the Declaration of Arbroath in 1320 have led to differences in views about parliamentary sovereignty and debates about constitutional tradition.[71]

The Statute of Rhuddlan provided the constitutional basis for the government of the Principality of Wales from 1284 until its union with England after the Laws in Wales Acts 1535 and 1542.

In 2004, a Joint Committee of the House of Commons and the House of Lords discussed that "the fundamental parts of constitutional law could be taken to include the following statutes":[72]

Since then, the following statues of a constitutional nature have become law:

See also

References

  1. 1 2 3 Blick, Andrew; Blackburn, Robert (2012), Mapping the Path to Codifying - or not Codifying - the UK's Constitution, Series paper 2. Centre for Political and Constitutional Studies, King’s College London, Parliament UK, retrieved 19 November 2016
  2. ↑ H Barnett, Constitutional and Administrative Law (5th edn Cavendish 2005) 9, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments"
  3. ↑ "Britain's unwritten constitution". British Library. Retrieved 27 November 2015. There are a number of associated characteristics of Britain’s unwritten constitution, a cardinal one being that in law the Parliament in Westminster (as opposed to regional parliaments in Scotland etc) is sovereign in the sense of being the supreme legislative body.
  4. 1 2 "Britain's unwritten constitution". British Library. Retrieved 27 November 2015. Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of Parliament, the courts may only interpret parliamentary statutes. They may not overrule or declare them invalid for being contrary to the constitution and ‘unconstitutional’. So, too, there are no entrenched procedures (such as a special power of the House of Lords, or the requirement of a referendum) by which the unwritten constitution may be amended. The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act of Parliament, however trivial its subject matter.
  5. ↑ Turpin, Colin; Tomkins, Adam (2007). British government and the constitution: text and materials. Cambridge: Cambridge University Press. p. 41. ISBN 978-0-521-69029-4.
  6. ↑ Beatson, Jack (1998). Constitutional reform in the United Kingdom: practice and principles. London: Hart Publishing. p. 45. ISBN 978-1-901362-84-8.
  7. ↑ Bogdanor, Vernon (1997). The Monarchy and the Constitution. Oxford University Press. p. 131. ISBN 0-19-829334-8.
  8. ↑ See Prof. Jeffrey Goldsworthy's study The Sovereignty of Parliament, OUP 1999.
  9. ↑ See in particular Jackson and others v Attorney General [2005] UKHL 56
  10. ↑ Smits, Jan (Jan 2002). The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System. Intersentia Publishers. p. 113. ISBN 978-90-5095-191-3. Formerly, of course, Scots law like other Civilian systems did not recognise the strict doctrine of stare decisis, and even today it is probable that the only single decision that the Court of Session could not disregard is a precedent established by the House of Lords in a Scottish appeal.
  11. ↑ Bradley and Ewing, p.24
  12. ↑ cf Dr Bonham's case (1610) 77 ER 638
  13. 1 2 Barnett, Hilaire (2014). Constitutional & Administrative Law. Rutledge. pp. 119–123. ISBN 1317446224.
  14. 1 2 Doherty, Michael (2016). Public Law. Rutledge. pp. 198–201. ISBN 1317206657.
  15. 1 2 Loveland, Ian (2015). Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. Oxford University Press. p. 43-47. ISBN 9780198709039.
  16. ↑ Chrimes, S B (1967). English Constitutional History. London: Oxford University Press. p. 42.
  17. ↑ Runciman, David (7 February 2008). "This Way to the Ruin". London Review of Books. Retrieved 10 January 2010.
  18. ↑ Bradley, A.; Ewing, K. (1997). Constitutional and Administrative Law. London. p. 271.
  19. ↑ Smith, David L. (2002). "Change & Continuity in 17th Century English Parliaments". History Review: 1.
  20. ↑ "Report of the Leader's Group on Working Practices".
  21. ↑ "Lords is essential as a revising chamber".
  22. ↑ Dicey, Albert Venn (1889). An Introduction to the Study of the Law of the Constitution. p. 86.
  23. ↑ AV Dicey, Introduction to the Study of the Law of the Constitution (1885)
  24. ↑ "ARCHIVED CONTENT] Number10.gov.uk » countries within a country". Webarchive.nationalarchives.gov.uk. 10 January 2003. Archived from the original on 9 September 2008. Retrieved 7 November 2010.
  25. ↑ "The politics of devolution". Open University. Retrieved 21 June 2017.
  26. ↑ Bogdanor, Vernon. "Quasi-federalism?". Politics Cymru. Retrieved 21 June 2017.
  27. ↑ "Devolved Parliaments and Assemblies". UK Parliament. Retrieved 21 June 2017.
  28. ↑ "Chapter 3: Constitutional provisions in the draft clauses". Proposals for the devolution of further powers to Scotland - Tenth report. Paragraphs 59-61: House of Lords Constitution Committee. 18 March 2015. Retrieved 21 June 2017.
  29. ↑ The New British Constitution. Bloomsbury Publishing. 2009. ISBN 1847317146.
  30. ↑ Elliott, Mark (28 November 2014). "A “Permanent” Scottish Parliament and the Sovereignty of the UK Parliament: Four Perspectives". UK Constitutional Law Association. Retrieved 21 June 2017.
  31. ↑ Gordon, Mike (30 September 2015). "The Permanence of Devolution: Parliamentary Sovereignty and Referendum Requirements". Scottish Constitutional Futures forum. Retrieved 21 June 2017.
  32. ↑ Gallop, Nick in The Constitution and Constitutional Reform p.26 (Philip Allan, 2011) ISBN 978-0-340-98720-9
  33. ↑ Bogdanor, Vernon (2001). Devolution in the United Kingdom. Oxford: Oxford University Press. p. 293. ISBN 978-0-19-280128-9.
  34. 1 2 3 4 5 Craig, Paul; Grainne De Burca; P. P. Craig (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. pp. 344–378. ISBN 978-0-19-927389-8.
  35. ↑ Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian; Jo Steiner, Lorna Woods and Christian Twigg-Flesner (2006). EU Law (9th ed.). Oxford: Oxford University Press. p. 72. ISBN 978-0-19-927959-3.
  36. ↑ R. v. Secretary of State for Transport ex p Factortame Ltd [1990] UKHL 13
  37. ↑ Benkharbouche and Janah v Embassy of the Republic of Sudan [2015] EWCA Civ 33
  38. ↑ Tomkins, Adam (2003). Public Law. Oxford University Press. p. 120. ISBN 978-0-19-926077-5. As far as English public law is concerned, even after Factortame Parliament may relatively easily legislate in violation of Community law and moreover may do so in such a way that the domestic courts have no option but to uphold and enforce the legislation.
  39. ↑ Craig, Paul; Grainne De Burca; P. P. Craig (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. p. 371. ISBN 978-0-19-927389-8. It is however unclear as yet what the UK courts would do if Parliament sought expressly to derogate from a provision of EU law, while still remaining in the EU.
  40. ↑ Quoted in Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). EU Law (9th ed.). Oxford: Oxford University Press. p. 79. ISBN 978-0-19-927959-3.
  41. ↑ European Union Act 2011
  42. ↑ "Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 ("Metric Martyrs" ruling) 18 Feb 2002 (Extract)". Bwmaonline.com. 18 February 2002. Retrieved 7 November 2010.
  43. ↑ Akehurst, Michael; Malanczuk, Peter (1997). Akehurst's modern introduction to international law. London: Routledge. pp. 65–66. ISBN 978-0-415-11120-1.
  44. ↑ http://www.independent.co.uk/news/uk/politics/brexit-loophole-eu-referendum-mps-law-legal-legislation-constitution-a7105181.html
  45. ↑ https://ukconstitutionallaw.org/2016/06/27/nick-barber-tom-hickman-and-jeff-king-pulling-the-article-50-trigger-parliaments-indispensable-role/
  46. ↑ Smith, David L. "Change & Continuity in 17th Century English Parliaments". History Review, 2002. p. 1.
  47. ↑ "Cabinet Manual" (PDF). Cabinet Office. 14 December 2010. Retrieved 27 April 2015.
  48. ↑ Dyer, Clare (21 October 2003). "Mystery lifted on Queen's powers". The Guardian. London.
  49. ↑ the power to dissolve Parliament, formerly part of the Royal Prerogative, was explicitly removed by the Fixed-term Parliaments Act 2011
  50. ↑ Bogdanor p. 34
  51. ↑ Bradley, A. W. & Ewing, K. D. (2003). Constitutional and Administrative Law (13th ed.). London: Longmans. pp. 243. ISBN 0-582-43807-1.
  52. ↑ Secret papers show extent of senior royals' veto over bills | UK news | The Guardian
  53. ↑ Bogdanor, p. 148
  54. ↑ "Elective dictatorship". The Listener: 496–500. 21 October 1976.
  55. ↑ "Constitutional reform". Courts and Tribunals Judiciary. Retrieved 9 November 2014.
  56. ↑ "Independence". Courts and Tribunals Judiciary. Retrieved 9 November 2014.
  57. ↑ Brookshire, Jerry Hardman (1995). Clement Attlee. New York: Manchester University Press. p. 15. ISBN 0-7190-3244-X.
  58. ↑ The Honourable Mr Justice Bernard McCloskey (17 October 2010). "Administrative Law and Administrative Courts in the United Kingdom: An Overview" (PDF). Retrieved 15 November 2014.
  59. 1 2 Barendt, Eric (1997). "Is there a United Kingdom Constitution". Oxford Journal of Legal Studies. 137.
  60. ↑ Scarman, Leslie (20 July 2003). "Why Britain Needs a Written Constitution". Charter88 Sovereignty lecture. Charter88. Retrieved 31 January 2010.
  61. ↑ Dicey, A.V. (1915). Introduction to the Study of the Law of the Constitution. London: Macmillan and Company. p. 70.
  62. ↑ Abbott, Lewis F. (2006). "Five: "The Legal Protection Of Democracy & Freedom: The Case for a New Written Constitution & Bill Of Rights"". British Democracy: Its Restoration & Extension. ISR. ISBN 978-0-906321-31-7.
  63. ↑ A V Dicey (1897) Introduction to the Study of the Law of the Constitution
  64. ↑ Bradley, Joseph P. (dissenting). "Slaughter-House Cases 83 U.S. 36 (1873)". Legal Information Institute. Cornell University Law School. Retrieved 30 July 2016.
  65. ↑ Dawn Oliver noted the absence of a ‘master plan or coherent programme for reform of the UK constitution’ and considered that the reforms were ‘pragmatic responses to political pressures and perceived problems, on an ad hoc, incremental basis’: as quoted by Mitchell, James, The Westminster Model and the State of Unions, Parliamentary Affairs, Vol. 63, No. 1 (Jan 2010), p. 85
  66. ↑ "Vote 2011: UK rejects alternative vote". BBC News. 7 May 2011.
  67. ↑ "Browse legislation". legislation.gov.uk. Retrieved 7 March 2017.
  68. ↑ Turpin, Colin; Tomkins, Adam (2011). British Government and the Constitution. Cambridge University Press. p. 5. ISBN 9781139503860.
  69. ↑ "Bill of Rights 1689 - Commons Library Standard Note". UK Parliament. 5 October 2009. p. 5. Retrieved 16 November 2014.
  70. ↑ House of Lords, House of Commons, Joint Committee on Human Rights; The Law Society of Scotland – Written evidence HRA0004 (2008). A Bill of Rights for the UK?: Twenty-ninth Report of Session 2007-08, Vol. 2: Oral and Written Evidence, Volume 2. London: The Stationery Office. p. 148. ISBN 9780104013489; "Political and Constitutional Reform Committee". Written evidence submitted by Canon Kenyon Wright CBE. May 2012. Retrieved 8 January 2017; McHarg, Aileen; Mullen, Tom; Page, Alan; Walker, Neil (2016). The Scottish Independence Referendum: Constitutional and Political Implications. Oxford University Press. ISBN 9780191072024; "Article 50 'Brexit' Appeal" (PDF). The Supreme Court. Written Intervention For The Independent Workers Union of Great Britain. December 2016. Retrieved 29 January 2017; Brown, Keith M. (1999). "Chapter 9 Seducing the Scottish Clio: Has Scottish History Anything to Fear From The New British History". In Burgess, Glenn. The New British History: Founding a Modern State, 1603-1715. I.B.Tauris. pp. 238–265. ISBN 1860641903.
  71. ↑ First Report of the Joint Committee on Draft Civil Contingencies Bill 28 November 2003 HL 184 HC 1074 para 183
  72. ↑ "Britain's unwritten constitution". British Library. Retrieved 27 November 2015. The written documents of our unwritten constitution ... First and foremost is Magna Carta (1215); "Bill of Rights 1689 - Commons Library Standard Note". UK Parliament. 5 October 2009. pp. 2, 5. Retrieved 16 November 2014. It is one of the four great historic documents which regulate the relations between the Crown and the people, the others being: the Magna Carta (as confirmed by Edward I, 1297) ...; Terrill, Richard J. (2015). World Criminal Justice Systems: A Comparative Survey. Routledge. p. 20. ISBN 1317228820. This is best illustrated by citing some of the significant statutes that were instrumental in developing British constitutional principles. … The first document that carried with it this kind of significance was Magna Carta.; Rau, Zbigniew; Żurawski vel Grajewski, Przemysław; Tracz-Tryniecki, Marek, eds. (2016). Magna Carta: A Central European Perspective of Our Common Heritage of Freedom. Rutledge. p. xvi. ISBN 1317278593. Britain in its history proposed many pioneering documents - not only Magna Carta, 1215; Hazell, Robert; Melton, James (2015). Magna Carta and its Modern Legacy. Cambridge University Press. p. 15. ISBN 110711277X. In the United Kingdom, Magna Carta continues to shape constitutionalism; "A new Magna Carta?" (PDF). House of Commons Political and Constitutional Reform Committee. 3 July 2014. Retrieved 29 January 2017; Blick, Andrew (2015). Beyond Magna Carta: A Constitution for the United Kingdom. Bloomsbury Publishing. ISBN 1849469636. considers a series of English and UK historical texts from Anglo-Saxon times onwards, among which Magna Carta is the most prominent; Kopstein, Jeffrey; Lichbach, Mark; Hanson, Stephen E. (2014). Comparative Politics: Interests, Identities, and Institutions in a Changing Global Order. Cambridge University Press. p. 38. ISBN 1139991388. The story usually begins with the Magna Carta of 1215
  73. ↑ "Britain's unwritten constitution". British Library. Retrieved 27 November 2015. The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown following the forcible replacement of King James II (r.1685–88) by William III (r.1689–1702) and Mary (r.1689–94) in the Glorious Revolution (1688).; "Bill of Rights 1689 - Commons Library Standard Note". UK Parliament. 5 October 2009. pp. 2, 5. Retrieved 16 November 2014. It is one of the four great historic documents which regulate the relations between the Crown and the people

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