Constitution of the United Kingdom

 

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The Constitution of the United Kingdom is the uncodified body of law which constitutes the rules for how the country functions. It consists mostly of written sources, including statutes, judge-made case law and international treaties. Because of the lack of a single codified constitutional document, the United Kingdom constitution is commonly mislabelled as an "unwritten constitution". For the most part it is written, but is not redacted or reduced into a single document.^[1] However, the constitution does have some unwritten sources, including Parliamentary conventions and the royal prerogatives.

There is no technical difference between ordinary statutes and law considered "constitutional law." Therefore the Parliament of the United Kingdom can perform "constitutional reform" simply by passing Acts of Parliament and thus has the power to change or abolish almost any written or unwritten element of the constitution, however no Parliament can pass laws that future Parliaments cannot change^[2]. The constitution is based on the concept of all sovereignty ultimately belonging to Parliament (Parliamentary sovereignty), so the concept of entrenching particular rights, privileges or rules cannot exist. Statutory law is often considered the most important source of the constitution. The UK constitution leaves more constitutional conventions unwritten than other liberal democratic constitutions, with the exceptions of New Zealand and Israel.

Government and Parliament

The informal nature of the constitution has been conducive to a lack of the concept of "constitution government" or "constitutionalism" in the United Kingdom. The "government" (i.e. the executive) is drawn from the legislature, Parliament, since the UK has a Parliamentary system of government. The doctrine of "limited government", central in all written constitutions, is not prominent in the UK constitution, nor is separation of powers or formal "checks and balances." Since the government is said to be "fused" with Parliament, and virtually every government has a majority, there is no formal restraint on its legislative power. 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^[3]. 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 of 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 the monarch.

Flexibility

Since there is neither entrenched constitutional law nor a formal separation of powers, Parliament has the ability to change almost any aspect of the constitution at will. The constitution is therefore often spoken of by political scientists as being "organic;" that is, it has "evolved" over time since its medieval origins.^{[citation needed]} In theory, its flexibility makes it responsive to political and social change especially since many political principles are simply conventions; however, the absence of entrenchment means that in theory far-reaching changes could be made without significant popular support. For example, most of (the) Magna Carta has been repealed since 1828. The courts' role is important, but not imperative. The courts may not question any act of parliament,^[4] but have ruled on constitutional matters whereby two statutes are in conflict - most notably with regards to European matters. The courts also have jurisdiction over the extent of Royal Prerogative where not limited by statute.

For instance, until recently, there was no modern statute or document that attempted to codify the rights of citizens (e.g. freedom of speech) in the UK, common law precedents being the main source of "rights", referred to as 'civil rights'. Now, through the adoption of European Union law, and the European Convention on Human Rights, citizens are deemed to have certain negative rights that were previously unspecified in the legal system. These are enacted in the European Communities Act 1972 and Human Rights Act 1998, respectively. Constitutional reform has been particularly rapid in the past decade, and include the Human Rights Act; devolution of powers of government to Scotland, Wales and Northern Ireland; a significant reform of the House of Lords and a Freedom of Information Act.

Sources

The UK constitution draws from a variety of written document and unwritten constitutional convention. The sources are of varying importance, with the written Acts of Parliament (statutes) and EU law being of greatest importance, regulating many aspects of government, and wider systems such as the running of elections. Foreign treaties, which are passed as Acts of Parliament, are also often of constitutional importance. As the United Kingdom uses the common law legal system, precedents established by judges also form a source of the constitution. Other important unwritten sources are Constitutional conventions, which, for example, attempt to establish lines of accountability for ministers. Many such conventions are ancient in origin, and form some of the principles of the constitution. Much about these conventions has been written, and guidelines for ministers and parliamentarians are today available in some detail in writing^[5]. The constitutional conventions of the United Kingdom, such as the duty of the Sovereign to act on the advice of 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] Rather, writings about conventions are meant to increase understanding of them, rather than supersede them. 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 century constitutionalists, mainly A.V. Dicey, Walter Bagehot and Erskine May.

Royal prerogative is the name for powers originally exercised by the monarch. They derived from the monarch's traditional authority, to use the Weberist term. In practice, by convention, most prerogatives are now directly exercised by ministers, such as the power to regulate the civil service, or the power to issue passports. Some absolute prerogatives (also known as the monarch's personal- or reserve prerogatives) still exist, but these are by convention exercised only on the advice of the Prime Minister and cabinet. These powers include summoning, proroguing and dissolving Parliament, granting royal assent to bills and formally appointing office holders. The most important reserve prerogative - also the most automatic under the current constitutional settlement - 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 in 1974^{[citation needed]}, despite his party not having a majority in Parliament. Queen Elizabeth II exercised her prerogative after extensive consultation with the Privy Council. Royal prerogatives are often controversial, since they give the government great theoretical power. However, 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.

Summary list

• Acts of Parliament
  • Treaties
• EU law
• Common Law
• Conventions
• Royal Prerogative
• Works of authority

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 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/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 the monarch does not technically rule but 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. The collective term for the legislative and governmental power of parliament is therefore the King (or Queen) in Parliament principle. This means that the monarch is often described as the "supreme guardian of the constitution" in that he or she could overturn an unconstitutional act of parliament by decree. This is extremely unlikely to happen, however; although the Crown, in theory, can govern by decree, such an act would enable parliament to force an abdication under the power it established and proved during the Abdication Crisis of 1936, when Parliament forced King Edward VIII to abdicate. The monarch, therefore, has an established role to advise, warn, and encourage ministers, although the Crown's executive powers remain unused.

The most recent major principle of the constitution is European Union membership, the principle that EU law takes precedence over UK law. This principle was famously identified in the Factortame case in which the Merchant Shipping Act 1988 was overturned. This appears to undermine the principle of Parliamentary sovereignty, but Parliament could still withdraw from the EU by repealing the European Communities Act 1972 so in a way Parliamentary sovereignty is preserved. This principle was confirmed in the 2002 case of Thoburn v Sunderland City Council, in which the court ruled that a European Union directive passed in accordance with the European Communities Act of 1972 superseded the conflicting Weights and Measures Act of 1985, due to the special status of the European Communities Act as a "constitutional" rather than an "ordinary" statute.^[7]

Summary list

• A.V. Dicey's "Twin pillars" of the constitution
  • Parliamentary sovereignty (ancient origins, modern evolution started from the Restoration)
  • Rule of law (ancient origins, modern evolution started in the nineteenth century)
• Other important principles
  • Unitary state (ancient origins, derived from monarchy)
  • Constitutional monarchy (originated from the Restoration)
  • EU membership (from 1972, primacy of EU law established in 1990^{[citation needed]})

Disputes about the nature of the UK Constitution

While some might assert that the UK does not have a constitution, the vast majority of theorists^{[attribution needed]} 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.^[8]

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.[1]

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.^[8] 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).

Key statutes and conventions

Because the United Kingdom adheres to the principle of parliamentary sovereignty, there is no hierarchy in statutory Acts of Parliament. In Thoburn v Sunderland City Council^[9] Lord Justice Laws from the High Court decided that he would try to establish a principle of law on this matter, that the United Kingdom courts ought to recognise a hierarchy.

"In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental... And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute."

This was wholly obiter dicta (i.e. not relevant to the case at hand and so not binding precedent), and entirely unfounded. Regardless of whether a rule of law ought to exist, it does represent a significant body of opinion that believes certain legal foundations ought not to be open to reevaluation. Below is a list of some more key statutes, commonly held as of high importance.

Selected key statutes

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).[2]
  • 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.
• Individual Ministerial Responsibility
• Collective Ministerial Responsibility

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 incorporation of the European Convention on Human Rights into UK law has granted citizens specific negative rights and given the judiciary some power to enforce them. The courts can encourage Parliament to amend primary legislation that conflicts with the Act by a "declaration of incompatibility," and courts can refuse to enforce or "strike down" any incompatible secondary legislation. Any actions of government authorities that violate Convention rights are illegal except if forced to 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. Devolution has challenged the tradition of the UK being a centralised, unitary state, which indeed it never was since Scotland and Ireland (until 1801) always had separate governments or legal systems. Some commentators have stated the UK is now a "quasi-federal" state.

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.

Some breaches of the principle of separation of powers have recently been rectified. 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). A further apparent breach of separation of powers, 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. Ironically, separation of powers was a concept described by the French philosopher Montesquieu after analysing the contemporary British constitution, which reflected the way in which the constitution actually operated. He did not necessarily anticipate a separation of offices, but was rather describing the separation of functions.

See also

• Commonwealth of Britain Bill
• Constitutional government
• Category:English constitutionalists
• History of the British constitution
• History of democracy
• Royal Commission on the Constitution (United Kingdom)
• Treaty establishing a constitution for Europe
• UK topics

Notes

External links

• The British Constitution A general introduction to the principles underlying the UK Constitution

References

• Bradley, A.W. and Ewing, K.D., Constitutional and Administrative Law (Pearson, 2003), ISBN 0-582-43807-1
• Report on the British constitution and proposed European constitution by Professor John McEldowney, University of Warwick Submitted as written evidence to the House of Lords Select Committee on the Constitution, published to the public on 15 October 2003.
• From Unwritten to Written: Transformation in the British Common-Law Constitution, David Jenkins, 2003

Constitution of Europe
Sovereign states	Albania · Andorra · Armenia1 · Austria · Azerbaijan2 · Belarus · Belgium · Bosnia and Herzegovina · Bulgaria · Croatia · Cyprus1 · Czech Republic · Denmark · Estonia · Finland · France · Georgia2 · Germany · Greece · Hungary · Iceland · Ireland · Italy · Kazakhstan2 · Latvia · Liechtenstein · Lithuania · Luxembourg · Republic of Macedonia · Malta · Moldova · Monaco · Montenegro · Netherlands · Norway · Poland · Portugal · Romania · Russia3 · San Marino · Serbia · Slovakia · Slovenia · Spain · Sweden · Switzerland · Turkey3 · Ukraine · United Kingdom (England · Scotland · Northern Ireland · Wales)
Dependencies, autonomies, and other territories	Abkhazia2 · Adjara1 · Akrotiri and Dhekelia · Åland · Azores · Crimea · Faroe Islands · Gagauzia · Gibraltar · Guernsey · Jan Mayen · Jersey · Kosovo · Man, Isle of · Madeira4 · Nagorno-Karabakh1 · Nakhchivan1 · South Ossetia2 · Svalbard · Transnistria · Turkish Republic of Northern Cyprus1, 5
1 Entirely in Southwest Asia; included here because of cultural, political and historical association with Europe. 2 Partially or entirely in Asia, depending on the definition of the border between Europe and Asia. 3 Mostly in Asia. 4 Entirely in the African Plate, included here because of cultural, political and historical association with Europe. 5 Only recognised by Turkey.

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