CONSTITUTION

learning objectives • Understand the key sources and principles of the

British constitution • Explain the main strengths and weaknesses of

traditional constitution • Define the parliamentary sovereignty • identify significant constitutional reforms

what is constitution?

Constitution The set of laws, rules and practices that create the basic institutions of the state and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions, and between those institutions and the individuals.

Codified constitution A codified constitution is a single document that sets out the laws, rules and principles on how a state is to be governed, and the rights of citizens. The key provisions governing the political system are collected in one authoritative document.

Codified constitution • is often produced at a critical juncture in a nation’s

history: for example, after independence • has the status of fundamental law or higher law,

placing it above ordinary law made by the legislature • Codified constitutions are characterised as rigid and

uncodified constitutions as flexible

Uncodified constitution An uncodified constitution is one in which the laws, rules and principles specifying how a state is to be governed are not gathered in a single document. Instead they are found in a variety of sources, some written (e.g. statute laws) and some unwritten (e.g. conventions).

Uncodified constitution • has the status of ordinary law, there is no

hierarchy of law • is not entrenched, but can be amended in the same

way as ordinary law • judicial review is limited, there is no single

authoritative document that senior judges can use to determine if an action is unconstitutional

sources of the British constitution

Sources of the British constitution • statute law • common law • conventions • authoritative works • European Union law

Statute law Statute law is created by parliament. In the legislative process, Acts of Parliament have to be approved by the House of Commons, the House of Lords and the monarch before they are placed on the statute book.

Statute law Not all Acts of parliament are of constitutional significance. Examples of statute law that have been of historical constitutional importance include: • the Great Reform Act (1832), which extended

franchise

Statute law • the Parliament Act (1911), which established the

House of Commons as the dominant chamber of parliament

• the European Communities Act (1972), by which the UK joined the European Economic Community (EEC)

Statute law • the Scotland Act (1998), which created the Scottish

Parliament • the Human Rights Act (1998), which enshrined key

rights in UK law • the Fixed-term Parliaments Act (2011), which

established fixed-term elections for Westminster

Common law common law includes legal principles that have been developed and applied by UK courts. The courts interpret and clarify the law where there is no clear statute law.

Common law common law also includes customs and precedents that have become accepted practice. They relate to the role of the monarchy, parliament and the executive.

Conventions Conventions are rules or norms that are considered to be binding. They are neither codified nor enforced by courts of law, it is long usage that gives conventions their authority.

Conventions examples include: • royal assent for acts of parliaments • Appointing the prime minister • Ministerial responsibility • Salisbury Convention

Authoritative works A number of established legal and political texts have become accepted as works of authority on the British constitution. These texts have no formal legal authority but they are guides to the workings of institutions and the political system in general.

Authoritative works • Erskine May's Treatise on the Law, Privileges,

Proceedings and Usage of Parliament (1844) • Walter Bagehot's The English Constitution (1867) • V. Dicey's An Introduction to the Study of the Law

of the Constitution (1884)

European Union law On 1 January 1973, the UK became a member of the European Economic Community, now the european union. The treaties establishing the European Union, legislation emanating from the EU and Judgements of the European Court of Justice have all become a part of the British constitution.

basic principles of the British constitution

basic principles of the British constitution • parliamentary sovereignty • the rule of law • the unitary state • parliamentary government in a constitutional

monarchy

Parliamentary sovereignty The doctrine that parliament has absolute legal authority. It enjoys legislative supremacy: parliament may make law on any matter it chooses, its decisions may not be overturned by any higher authority and it may not bind its successors.

The rule of law The rule of law concerns the relationship between the state and its citizens, ensuring that state action is limited and responsible. All UK citizens must obey the law and are equal under it.

the unitary state state in which power is concentrated at the political centre and all parts of the state are governed in the same way.

Parliamentary government in a constitutional monarchy government takes place though parliament under a constitutional monarchy. Government ministers are politically accountable to parliament and legally accountable to the Crown.

Constraints on parliamentary sovereignty

Constraints on parliamentary sovereignty • executive power • membership of the European Union • the Human Rights Act (1998) • devolution • referendums

Executive power a major criticism of the doctrine of parliamentary sovereignty is that political reality is very different from legal theory. There are numerous informal and formal constraints on what parliament can do.

European Union The UK's membership of the EU provides the most significant challenge to the traditional view of parliamentary sovereignty. the European Communities Act (1972) had important constitutional implications.

Human Rights Act The Human Rights Act (1998) incorporated the rights set out in the European Convention on Human Rights (ECHR) into UK statute law. it requires the British government to ensure that legislation is compatible with the convention.

Devolution Westminster no longer makes law on devolved matters, but it retains legislative supremacy. It has sole authority over 'reserved matters' such as the UK economy, social security and the constitution.

Referendums Adherents to the traditional view of parliamentary sovereignty oppose referendums because they place decision making in the hands of the electorate rather than MPs and peers. The increased use of referendums suggests a shift towards popular sovereignty.

Strengths and weaknesses of the traditional constitution

Strengths • Adaptability • Evolution • Strong government • Accountability

Adaptability The constitution has proved its value by operating effectively over many years. Pragmatic reforms, introduced where there is a clear case for change, have enabled the constitution to adapt to changed circumstances.

Evolution constitution has evolved over time and reflects the history and enduring values of the British people. The rules and practices that make up the constitution form a coherent and intelligible whole.

Strong government The traditional constitution provides for strong and effective government. The doctrine of parliamentary sovereignty establishes supreme authority within the political system.

Accountability Strong government is also responsible government. The government is accountable to parliament, which scrutinises its activities, and responsive to the electorate.

Weaknesses • Lack of clarity • Concentration of power • Outdated and undemocratic

Lack of clarity The uncodified nature of the constitution creates problems of clarity and interpretation. It is not always clear when a government has acted unconstitutionally.

Concentration of power Power is concentrated dangerously at the centre. Parliamentary sovereignty and the absence of a codified constitution mean that even the key tenets of the rule of law are not fully protected.

Outdated and undemocratic Critics of the traditional constitution depict it as outdated, inefficient and undemocratic.

Reforming the constitution

Human rights The Human Rights Act (1998) enshrined most of the provisions of the European Convention on Human Rights (ECHR) in UK law. it requires the British government to ensure that legislation is compatible with the convention.

Devolution Devolution involves the transfer of powers – legislative, executive and tax-raising – from central government to subnational institutions. The UK no longer fits the classic definition of a unitary state.

Decentralisation decentralisation involves transfer of powers to local authorities. All local authorities were obliged to reform their political management, but by 2010 only 12 had adopted the government's preferred option of a directly elected mayor.

Electoral reform Proportional representation was introduced for elections to the Scottish Parliament, Welsh Assembly, Northern Ireland Assembly and European Parliament, and for directly elected mayors in a number of towns and cities.

Parliamentary reform The House of Lords Act (1999) abolished the right of all but 92 hereditary peers to sit and vote in the upper house. However, any further reform of the house of lords has stalled.

The judiciary The Constitutional Reform Act (2005) focused on judicial reform. A Supreme Court, which started work in 2009, became the UK's highest court and removed the judicial role of the House of Lords.

Freedom of information The Freedom of Information Act (2000) gave individuals a right of access to personal information held on them by public bodies.

Elections, referendums and parties The Political Parties, Elections and Referendums Act (2000) established an independent Electoral Commission to administer elections and referendums, set an upper limit on national campaign expenditure by political parties.

Fixed-term parliaments Under the Fixed-term Parliaments Act 2011, general elections are now held after a fixed 5-year parliamentary term.

European Union The European Union Act (2011) provides a 'referendum lock' under which any future treaty transferring powers from the UK to the EU must be put to a binding referendum.

Impact of the reforms

uncodified constitution The reforms did not introduce a codified constitution, but they did establish key principles and procedures (e.g. human rights, devolution) in statute law.

Parliamentary sovereignty The legislative supremacy of parliament has been preserved, but parliament has ceded significant powers. The Scotland Act (1998) states that the Westminster Parliament remains sovereign and retains the power to make laws for Scotland.

The rule of law The power of the state was restricted and the rights of citizens were strengthened by the Human Rights Act (1998) and the Freedom of Information Act (2000), although these did not go as far as some reformers had hoped for.

The unitary state Asymmetric devolution means that the component parts of the UK are governed in different ways. Policy differences have also emerged, so elements of the welfare state are no longer uniform across the UK.