Constitution of the United Kingdom
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 This article is part of the series Politics of the United Kingdom |
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The United Kingdom has an uncodified constitution, consisting of both written and unwritten sources. There is no technical difference between ordinary statutues 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 any written or unwritten element of the constitution. The constitution is based on the concept of all sovereignty ultimately belonging to Parliament (Parliamentary sovereignty), so the concept of entrenchment cannot exist. The lack of a central written constitutional document explaining the fundamental principles of the state and relationship between between its institutions and between the people leads some constitutionalists to regard the United Kingdom as having "no (formal) constitution". The phrase "unwritten constitution" is sometimes used, despite that fact that the UK constitution incorporates many written sources, statutory law being considered the most important source of the constitution. But the case remains that the constitution relies far more on unwritten constitutional conventions than virtually every other liberal democratic constitution.
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, governments have no formal restraint on their legislative power. This is only broken if government Members of Parliament vote against a government bill, which due to a strong whip system has not occured since 1986. The phrase elective dictatorship was introduced in 1976 to highlight the enormous potential power of government afforded by the constitution. In practice, some principles and elements of the constitution are so ancient and fundamental to the UK's political culture they would never realistically be abolished, such as the rule of law, even if the de-jure capacity exists. The concepts of Parliamentary sovereignty and of the rule of law have been widely considered the most important principles of the constitution since the nineteenth century.
Since entrenched "constitutional law" does not exist, the UK constitution is flexible, as opposed to rigid constitutions such as the Constitution of the United States. It is often spoken of as being "organic" by political scientists, that is, it has been "evolving" over time from its medieval origins. In theory, its flexibility makes its responsive to political and social change, especially through political principles expressed in conventions. Despite the tradition of freedom of speech and other rights in the UK, until recently there was no modern statute or document that attempted to codify the rights of citizens in the UK, Common law precendents being the main source of "rights". This has been remedied in recent years, with the incorporation of some important written sources, such as European Union law and the European Convention on Human Rights, which formally grants citizens specific negative rights that were previous lacking in the legal system. These sources are enacted in the European Communities Act 1972 and Human Rights Act 1998, respectively. Arguably these developments, and the Labour government's reforms from 1997 have improved the constitution, despite the lack of central written entrenched constitutional document. Labour's reform programme has conducted many reforms, including the Human Rights Act, devolution to Scotland, Wales and Northern Ireland, partial reform of the House of Lords and a Freedom of Information Act.
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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. Another important unwritten source are Constitutional conventions, which for example attempt to establish lines of accountability in ministers. Many such conventions are ancient in origin, and form some of the principles of the constitution. Much about these conventions has been written, guidelines for ministers and parliamentarians are today available in some detail in writing1. But this does not mean that the unwritten conventions they are derived from are irrelevant, since they can only formally be replaced by Acts of Parliament. 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 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 are still nominally exericised by the monarch, but are exercised only on the advice of the Prime Minister and cabinet. These powers are summoning, proroguing and dissolving Parliament, granting royal assent to bills and formally appointing office holders. Royal prerogatives are often controversial, since they give the government great theoretical power. However, the Royal Prerogative is not unlimited, established in the Case of Proclamations (1611), no new prerogative can be created, and Parliament can abolish individual prerogatives.
Summary list
- Acts of Parliament (written)
- Treaties (written)
- EU law (written)
- Common Law (unwritten)
- Conventions (unwritten)
- Royal Prerogative (unwritten)
- Works of authority (written)
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. Of course, some theorists assert that the UK has no constitution at all, since it has no fundamental written source and relies much on unwritten convention. Dicey himself identified that ultimately "the electorate are politically sovereign", and Parliament is legally sovereign.
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 are totally dependent on Acts of Parliament, they could be abolished completely by Parliament if it wished so. Constitutional monarchy is a key principle, meaning that the monarch does not actually rule, they have 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. 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.
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)
Key statues and conventions
Selected key statutes
- Magna Carta (1215)
- Habeas Corpus Act 1679
- Bill of Rights 1689
- Claim of Right 1689
- Act of Settlement 1701
- Act of Union 1707, joining England & Scotland to form Great Britain
- Act of Union 1800, joining Great Britain & Ireland to form the United Kingdom of Great Britain and Ireland
- Reform Act 1832
- Reform Act 1867
- Reform Act 1884
- Parliament Acts (of 1911 and 1949)
- Representation of the People Act 1918
- Irish Free State (Agreement) Act 1922, Irish Free State Constitution Act 1922, and Irish Free State (Consequential Provisions) Act 1922 recognised the Irish Free State as no longer part of the United Kingdom
- Representation of the People Act 1928
- Statute of Westminster 1931
- Representation of the People Act 1949
- Representation of the People Act 1969
- European Communities Act 1972
- Human Rights Act 1998
- Scotland Act 1998
- Government of Wales Act 1998
- Northern Ireland Act 1998
- House of Lords Act 1999
- Constitutional Reform Act 2005
Some important conventions
- Relating to monarchy
- Since the reign of Queen Anne, the monarch has not refused to grant the Royal Assent to Bills passed by Parliament.
- 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.
- 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.
- All ministers be drawn from the House of Commons or the Lords.
- The House of Lords will accept any legislation that was in the Government's manifesto (the 'Salisbury Convention').
- Individual Ministerial Responsibility
- Collective Ministerial Responsibility
History
Main article History of the British constitution
Recent constitutional reform
The current Labour government, elected in 1997, re-elected in 2001 and 2005 has made much constitutional reform, with some yet to come into effect. 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. Reform has also decentralised the UK by setting up devolved assemblies in Scotland, Wales, Northern Ireland and (less significantly) in London. Devolution has challenged the tradition of the UK being a highly centralised, unitary state. 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 would be unprecendented, very unpopular and therefore extremely unlikely, so these restrictions on the legislative power of Parliamentary are permanent for the time being. The passing of an unprecendented Freedom of Information Act has challenged the traditional British notion of secretive government, though officials have being criticised for failing to disclose documents. The desire of the government to abolish the position of Lords Chancellor, an anchronistic position with executive, legislative and judicial power, although defeated in the House of Lords has shown desire to have at least some separation of powers. A further apparant 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 a new "Supreme Court" by 2008.
Summary of Labour's proposed and implemented reforms:
- Referendum on the electoral system to the House of Commons. Mentioned in 1997 manifesto, Jenkins Commission submitted a recommendation for electoral reform in 1998. The government appears to have abandoned this proposal.
- The creation of the devolved assemblies in Scotland, Wales and Northern Ireland, with their own direct elections, after holding referendums.
- The creation of a devolved assembly in London and the introduction of directly elected mayors. Referendum held in London and in many towns to assess support for an elected mayor.
- The beginning of a process of reform of the House of Lords, including the removal of all hereditary peers except 92.
- The incorporation of the European Convention on Human Rights into UK law by the passing of the Human Rights Act 1998.
- The passing of the Freedom of Information Act 2000.
- The passing of the Political Parties, Elections and Referendums Act 2000, creating the Electoral Commission to regulate elections and referendums and party spending to an extent.
- Constitutional Reform Act 2005
- Reform of the position of the position of Lord Chancellor
- The removal of Law Lords from the House of Lords to a new "Supreme Court" building in by 2008
See also
- Commonwealth of Britain Bill
- Constitutional government
- Category:English constitutionalists
- History of the British constitution
- History of democracy
- Treaty establishing a constitution for Europe
- UK topics
External links
- Note 1: A Code Of Conduct And Guidance On Procedures For Ministers (http://www.cabinetoffice.gov.uk/propriety_and_ethics/ministers/ministerial_code/) (Issued formally by the Prime Minister in July 2001)
References
- Report on the British constitution and proposed European constitution by Professor John McEldowney, University of Warwick (http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldconst/168/16809.htm#note92) Submitted as written evidence to House of Lords Select Committee on Constitution, published to the public on 15 October 2003.
- From Unwritten to Written: Transformation in the British Common-Law Constitution, David Jenkins, 2003 (http://law.vanderbilt.edu/journal/36-03/Jenkins2.pdf)nl:Britse Grondwet