The British Constitution 1

The British Constitution

Constitution
 Establishes the rules and principles that govern the organisation
 In the case of countries: refers specifically to a national constitution defining
the fundamental political principles, establishing the structure, procedures,
powers and duties of a government
 Most national constitutions also included a statement of the rights of the
individual

Importance
 Provide legitimacy to those in power
 Protect freedom and set out what those in authority can do and define the
limits of their power
 Encourage governmental stability -> introduce a degree of order and
predictability into governmental arrangements, enable everyone to
understand the rules of the political game
 Set out the respective spheres of influence of the central and regional,
provincial tiers in federal countries (US)
 Create a fresh start, after a period of long-term upheaval
 Draw attention to the goals and values that characterise a particular state

Principles
 The sovereignty of parliament (absolute and unlimited authority)
 The rule of law
o Everyone is equal under the law
o Should be accessible to everyone, no one should be punished unless
the law has been broken
o Laws of constitution cannot be removed, especially essential
liberties
 Fusion of powers enables power to be coordinated and government to be
carried on effectively

Codified Uncodified UK = Uncodified

o All the main o Exist where many o Evolve over time,
provisions are of the more
brought together constitutional contemporary
in one rules are written o Less easy to
authoritative down but have not destroy
document been gathered o Amendments made
o Same meaning as together more easily
“written” o A variety of
Usually said to be sources, some No one has codified as it is
“entrenched” written (e.g. the oldest constitution of
 Given a degree of stature laws) and the world and its origins
protection from some unwritten can be traced back to 1066
arbitrary change (e.g. conventions) (require a lot of effort)
Flexible Rigid UK = Flexible
o Rare o The principles and o Easy to make
o Can be altered via institutions amendments
the law-making assume the
process character of
o No formal process fundamental law
for constitutional o Procedure for
amendments amendments is
o No laws are therefore
regarded as deliberately made
fundamental difficult
o No change can be
made without due
consideration and
discussion
Unitary Federal UK = Unitary
o Tend to be o Division between a o Moving towards
especially suitable federal gov and federal ->
in smaller various regional devolution in
countries and in units that may be Wales, Scotland
those where there called states (US) and Northern
are no significant o The powers and Ireland
ethnic, linguist or functions of the
religious central authority
differences and the regional
o All power is unit are clearly
concentrated in defined in the
the hands of the written
central gov constitution
o Central gov
controls all
regions
Presidential Parliamentary UK = Parliamentary
o Two branches of o The Executive is o PM is
gov function chosen from and extremely
independently on accountable to the powerful
the basis of the legislature (large
separation of o 3 parts in backing from
powers Parliament, the party) ->
o US: president is Executive and often can
elected separately Legislature pass laws,
from Congress overlap unless
HofL/Queen
disagrees

Executive
 The branch of government responsible for directing the nation’s foreign
affairs and the initiation and execution of laws and policies
 Example: UK government
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Legislature
 The branch of government responsible for discussing and passing laws
(legislation) and acting as a watchdog over the government
 Example: UK parliament

Judiciary
 The branch of government responsible for interpreting and applying the laws
in particular cases
 Example: the British judges

Sources of the Constitution

1. Statute Law
 Law created by parliament (Acts of Parliament)
 AofP have to be approved by the HofC, HofL and the monarch before they
are placed on the statute book (then implemented by executive and
enforced by courts)
 Most important source because Parliament is the sovereign body, all
other sources are ultimately inferior to parliamentary statute

The Scotland Act (1998) – created a Scottish parliament

The Human Rights Act (1998) – established key rights in UK law
The Fixed-term Parliament Act (2011) – established fixed-term elections for
Westminster

2. 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 (interpretation from court goes to stature law after one year to serve
as a guide to future lawmakers)
 Includes customs and precedents that have become accepted practice
o Relate to role of the monarchy, parliament and the executive
o The royal prerogative (powers exercised in the name of the Crown)
 Give royal assent to legislation
 Declare war and negotiate treaties
 Appoint ministers

3. Conventions
 Rules or norms that are considered to be binding
 Neither codified nor enforced by courts of law
 It is long usage that gives conventions their authority
 By convention, the monarch must assent to AofP. If the queen were to
refuse, a constitutional crisis would ensue
 Have been an imprecise guide to what should be considered
constitutional
1) Appointing the Prime Minister
 The leader of the largest party in the HofC after a general
election will be invited to form a government
 Should there be a hung parliament, the monarch could face a
difficult decision

2010 General Election

 Produced a hung government (Tories – largest
party)
 Brown remained in office for 5 days while
coalition negotiations took place
 Cameron was appointed PM even though
coalition negotiations between Tories and Lib
Dem had not formally concluded

2) Ministerial Responsibility
 Circumstances under which government ministers ought to
resign are governed by convention
 Ministers should resign if they (or their department) are guilty
of serious political mistakes
 Ministers who cannot accept a policy position agreed by the
cabinet should leave the government

3) Salisbury Convention
 HofL should not vote out or wreck bills that seek to enact a
manifesto commitment of the governing party
 An unelected upper house with an inbuilt Conservative
majority should not frustrate with the will of the Commons
and the electorate
 This convention has been challenged over the years

Lib Dem and Conservative peers voted against legislation on

identity cards even though it had featured in Labour’s 2005
election manifesto. (Argued that Labour did not have a sufficient
mandate, as they won just 35% of the vote on a low turnout)

4. Authoritative Works
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 A number of established legal and political texts have become accepted

as works of authority on the British constitution
 No formal legal authority but have “persuasive authority” as guides to
the workings of institutions and the political system in general

Walter Bagehot’s The English Constitution (1867)

5. European Union Law
 UK became a member of the European Economic Community on 1st Jan
1973
 Treaties establishing the EU, legislation emanating from the EU and
judgements of the European Court of Justice have all become a part of the
British constitution

Strengths of the UK Constitution

1. Fusion of Powers
 Members of government are also MPs
 The executive dominates the legislature
 Controls the parliamentary timetable and can use its parliamentary
majority to push through its legislative programme
 Parliamentary sovereignty has contributed to the centralisation of power
in the UK

2. Equality of Legislation
 No parliament may bind its successors and all legislation is of equal
status
 In other liberal democracies, constitutional law has a higher status
than other forms of law, cannot be amended or repealed by simple
majority votes in the legislature
 Major changes to the constitution have been enacted by simple
majority votes in parliament
 Legislation is not entrenched (e.g. not codified), one piece of
legislation can be amended in the same way as any other

Entrenched Provisions
 Included in some constitutions to make it more difficult to change
 Require a form of supermajority, a referendum submitted to the
people or the consent of another party
 Codified constitutions usually have them (US constitution)
 X E.P = can be overruled by parliament because of parliamentary
sovereignty (in theory)
BUT-> increasing importance of popular sovereignty, as seen
from the usage of referendums (Sept 2014 Scottish referendum)

3. Law on any matter

 No constitutional restrictions on the scope of parliament’s legislative
authority
 Parliament has the right to make retrospective laws and reform itself

The Parliament Act (1911)

-HofL could no longer block bills approved by the HofC. Lords can
only delay them from entering into force for 2 years.
-Reduced to 1 year, under the Parliament Act 1949
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4. Legislative Supremacy
 Constitutional court of UK has no power to declare legislation
unconstitutional and to annul it (unlike many liberal democracies)
 UK parliament enjoys legislative supremacy
 Cannot strike down statute law on the grounds that it is
unconstitutional or that it conflicts with the common law

Limitations on Parliamentary Sovereignty

1. Executive Power
 Political reality is very different from legal theory
 Parliament is legally sovereign but its authority derives from the
electorate
 If parliament ignored the wishes of the people, its legitimacy would
be undermined
 The doctrine of mandate allows the government to claim that they
have popular support for measures featured in their manifesto
o Right of government to make law is less clear if their
proposals have not received popular endorsement
 Increasing importance of popular sovereignty

2. European Union
 The UK’s membership of the EU provides the most significant
challenge to the traditional view of parliamentary sovereignty
 Legal basis for British membership was provided for by the European
Communities Act (1972)
 Gave legal force to existing and all future EU laws, EU regulations do
not need to receive the explicit assent of parliament before they
become binding
 EU law has precedence over domestic British law (if there is a conflict
between the 2, EU law must be applied and British law may have to be
amended)
 Parliament does retain sovereignty as it has the right to repeal the
European Communities Act (1972), although the terms of British
withdraw from the EU would have to be negotiated

The 1990 Factortame case

-Resulted in the Merchant Shipping Act (1988) being disapplied
-Its provisions restricting non-British citizens from registering fishing
boats as British were contrary to Community law

3. HRA (1998)
 Incorporated the rights set out in the European Convention on
(ECHR) into UK statute law
 Not superior to parliamentary statute as it is based upon ECHR rather
than on EU law
 Theory: parliamentary sovereignty is preserved as the courts cannot
automatically strike down laws
o It is for parliament to decided whether to amend the law or to launch
an appeal if legislation is found to be incompatible
 In practice: a law deemed contrary to human rights will lack moral
authority and will be subject to further legal challenge

 17 declarations of incompatibility by 2011, 8 of which were

overturned by appeal
 Used in granting lifelong anonymity to the killers of the toddler Jamie
Bulger
o Might threaten their lives (threaten Article 2)
o May subject them to inhuman and degrading treatment (threaten
Article 3)
o Help protect their right to a private and family life (Article 8

Constitutional Reforms

1. The Labour Government (1997-2010)

 They had a massive popular mandate to carry out a number of
significant measures.

Parliament
 House of Lords Act (1999) - all but 92 hereditary peers lost their
right to sit and vote in the chamber
 2003 - Second stage of reform was stalled when Parliament rejected
all 8 models for a reformed chamber
 2007- Commons voted for a completely elected second chamber
whilst Lords voted for an entirely appointed model
 As Labour left office in 2010, Lords reform was still essentially where
it was following the HofL Act (1999)

Devolution
 Scottish parliament and a Welsh Assembly were established
 London was given an elected mayor, a strategic authority (the Greater
London Authority) and a 25-member elected assembly (the Greater
London Assembly)
 Northern Ireland Act (1998) – established a Northern Ireland Assembly
and power-sharing executive

Judiciary
 HRA (1998) incorporated most of the provisions of the ECHR into UK
law
 Citizens could seek redress in UK courts without having to go to the
European Court of Human Rights in Strasbourg
 Constitutional Reform Act (2005) – established a new UK Supreme
Court which took on virtually all of the judicial roles previously
performed by the HofL
 New Supreme Court opened for business in Oct 2009
 Changes to how senior judges are appointed (establishment of an
independent Judicial Appointments Commission)

2. The Conservative and Lib Dem Coalition (2010-)

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 Hung government, no mandate technically (the electorate did not

vote for a coalition gov, they voted for individual parties) ->
compromised legislation

Parliament
 Fixed-term parliaments, general elections will be held after a fixed 5
year parliamentary term
 Can be dissolved a) vote of no confidence or a motion calling
early election agreed by 2/3 MPs
 Recall of MPs in event of serious wrongdoing
 2011 White Paper and Draft Bill

Electoral
 Tories: retain FPTP
 Lib Dem: introduce PR
 Referendum on replacing the FPTP system with AV (alternate vote) in
May 2011
 68% voted against AV
 Conservatives campaigned aggressively for “no” vote

Devolution
 Referendum on Scottish Independence to be held in Sept 2014
 45% Yes, 55% No vote
 Very high turnout – 81%
 Referendum on new powers for Welsh Assembly in March 2011
 64% Yes
 Powers transferred to Welsh Assembly (full primary
legislative power in the 20 devolved areas)
Judiciary

Refers collectively to all UK judgces, from lay magistrates and those serving as
tribunals right up in the 12 senior justices stting in the UK supreme court

Crown
Court UK
High Court of
and Supreme
Court Appeal
County Court
Courts

Old Supreme Court

 The Appellate Committee of the HofL was the ultimate court of appeal within
the UK
 Only the European Court of Justice had the power to overrule the HofL (only
matters concerning EU law)
 12 Lords of Appeal in Ordinary
 Heard appeals referred from the Court of Appeal (both criminal and civil
sections)
 Clarified the meaning of contentious points of law
 Problem: UK citizens were denied the kind of iconic and independent
Supreme Court enjoyed by those in USA
 Since the highest court of appeal was hidden within the legislature
 People X understand the difference betwee the legislative work of upper
chamber and the judicial work of the Appellate Committee

New Supreme Court

 Established by Constitutional Reform Act (2005)
 Opened for business in Oct 2009
 11 of the 12 Lords of Appeal in Ordinary moved to new accommodation in
the renovated Middlesex Guildhall, opposite the House of Parliament, became
first justices of the new UK Supreme Court
 remained members of the Lords, but banned from sitting and voting in the
legislature for as long as they remain Justices of Supreme Court
 12th Law Lord: Sir John Dyson, first member of the court to be appointed
under the new appointment process
 took on the four roles previously performed by the Law Lords
1. Act as the final court of appeal
2. Hear appeals on issues of public improtance surrounding arguable points
of law
3. Hear appeals from civil cases
4. Hear appeals from criminal cases
 Took on role of the Judicial Committee of the Privy Councils in resolving
disputes between the devolved governments and the UK government

Judicial Appointment in Supreme Court

 Done by the 5-member Selection Commission
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 Separate from the Judicial Admission Commission, which selects other

members of the senior judiciary
 Still involves the Lord Chancellor (Justice Minister), but this role is to be
greatly reduced
 In reality appointments are more complicated
 Although LC appears to have considerable power, he/she is not permitted to
repeatedly reject names put forward by the Commission

Judicial Appointments
 New, independent Judicial Appointments Commission
 Hoped to result in a senior judiciary more representative of the broader
population
 Previously: made by the monarch on the advice of the PM and Lord
Chancellor (lacked transparency and compromised the proper separation of
power)

2008 Jan, the Guardian reported that

 New JAC had approved of 21 individuals to become High Court judges
 10 already been given posts
 All white, male and former barristers
 9 educated in Britain, 6 went to leading independent schools

Vacancy arises

Selection Commission considers possible nominees and make a "selection" based on merit

Commission submits report to Lord Chancellor naming a nominee

Lord Chancellor has 3 options (accept by notifying PM, reject or to require commission to reconsider)

If PM notified -> PM must recommend the candidate to the Queen

Individual is appointed Justice of Supreme Court when Her Majesty issues letters patent

Effects of new Supreme Court

 lifting of restrictions on television cameras may result to the emergence of a
new relationship between the media and senior judges
 way in which rulings are delivered changed
o downloadable texts of the Court’s rulings can be found on their
website along with press summaries of judgements
o allow greater public scrutiny of the Court’s workings
 affect the way other governmental brances view the new Court and their
position in relation to it
 appointment proccess is significantly more independent and less opaque
 judicial independence, clearer separation of powers

Against
 no significant changes in the roles or power of the Court
 simply taken on the roles previously held by those Law Lords serving in the
Appellate Committee of HofL
 evidence of increasing friction between the judiciary and leading politicians
before establishment of S.C suggests that higher levels of UK judiciary were
already functionally independent

January 2010
 The Supreme Court ruled that the UK Treasury had acted ultra vires when
implementing parts of the TO 2006 and AQO 2006
 Allowed the authorities to freeze the assets of those suspected of terrorist
activities without trial
 The Court ruled that it encroached upon fundamental rights

Used power available to Law Lords previously in respect of ultra vires rulings,
“declarations of incompatibility” under HRA 1998 and disputes arsing under EU law

Raised question of what difference the S.C has made (if any)

Ultra Vires – beyond one’s authority

Judicial Review
 The power of senior judges to review the actions of government and
public authorities
 Declare them unlawful if they have exceeded their authority
 Blair government’s reform
 Limiting parliamentary sovereignty -> clearer separation of powers
(removed judicial functions from Lords)
 1998 HRA – greater role of judiciary as they can suspend UK laws if
they contradict with EU laws, as they are under the Treaty of Rome
(show precedence over UK legislation)

Judicial Independence
 principle that those in the judiciary should be free from political control
 allows judges to “do the right thing” and apply justice properly without fear
of the consequences

How?
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 security of tenure : judges are appointed for an open-ended term, limited

only by the term that they must retire by 75 (politicians cannot seek to bring
influence by threatening to sack/suspend them)
 guaranteed salaries paid from the Consolidated Fund: salaries cannot be
altered with the aim of putting pressure
o control of judges’ apy is beyond everyday political control
o judges are free to make decisions as they see fit without fear of
financial penalty
o politicians cannot offer judges inducements to make the decisions
they want

Judicial Neutrality
 judges operate impartially, without personal bias, in their administration of
justice
 essential requirement of the rule of law
 absence of judicial independence threatens judicial neutrality
 if judges being controlled, X be impartial
 BUT: independence does not guarantee neutrality as judges may still allow
their personal views to influence their administration of justice

Civil Liberties
 Fundamental freedoms enjoyed by citizens under the style of limited
government practised in liberal democracies
 Uncodified nature of constitution -> hard to determine precisely where civil
liberties are set out
 UK had nothing analogous to the US Bill of Rights
 Constitution and statutory framework have evolved over time with citizens
remaining free to do anything not prohibited in stature (system of negative
rights)

Negative rights – liberties are not explicitly set out, but exist in the absence
of any law forbidding individuals from exercising them

Positive Rights – explicitly assigned to citizens, often entrenched as part of

codified constitutional settlement

New Rights Culture

 1997: New Labour brought in 3 pieces of new legislation to the stature books
 HRA 1998
 Freedom of Information Act 2000
 Data Protection Act 1998
 HRA and FIA included in party’s 1997 manifesto (have a mandate)
 Led to a new culture of positive rights -> more akin to the US’ political culture

1. HRA 1998
 Came into force in October 2000
 Incorporated most of the ECHR into UK law
 Can appeal cases in UK courts rather than going directly to the
European Court of Human Rights in Strasbourg
 X precedence over UK law as it is not based on EU law
 “persuasive authority”: has enhanced the protection of individual
rights in the UK

2. Freedom of Information Act 2000

 Given royal assent in 2000
Derogation
  only came into
A process by force
whichinthe
2005government is exempted in observing a
 This delay was said to give
law/regulation that previouslypublichad
authorities time to
been agreed onprepare for the
 anticipated
Article 15 avalanche of requests
of ECHR: govs for information
can derogate some of the convention’s
 Gave citizens the right to access information held by authorities
aarticles in times of national crisis
 Established a new Information Commission and Information Tribunal
 Response to the widespread perceptio nthat there needed to be
Anti-Terrorism Crime and Security Act 2001
greater transparency in government and allegations of sleaze that
 Gov derogated Article
affected the 5 of ECHR
dog-days of John Major’s Conservative administration
 “Public emergency threatening the life of the nation”
3. Data Protection Act 1998
 Overshadowed by the HRA and FOI
 But provides significant guarantees too

1.) Places restrictions on the storage of personal data

2.) Limits the sharing of such data between different organisations
3.) Requires that information is held securely
4.) Gives individuals the right to see any information that relates to them
and to have factual inaccuracies corrected

Did these legislations work?

1. HRA 1998
 Can be amended, derogated under parliamentary sovereignty as a
regular piece of statute
 Courts cannot strike down parliamentary statute, but can make a
declaration of incompatibility and invite parliament to reconsider the
offending stature
 When statute is unclear -> courts can make use of HRA and use its
provision to establish legal precedent in common law

2. Freedon of Information 2000

 Early years: request were not made by members of the public but by
media organisations
 Seen as a meas of tying loose ends on earlier stories or as an
additional tool when engaged in investigative journalism
 By 2013: used more widely and increasinly seen as an effective means
by which the government could be held to account
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Disclosuers of the furore over MPs’ expenses began with a requet

made under the FOI by Anglo-American journalist Heather Brooke

3. Data Protection Act 1998

 Has not prevented the emergence of massive national databases
 Increasing concern over the way in which information is shared
between state institutions
 Numerous losses of personal data
 2008 survey by Rowntree Trust
 ¼ of all the largest public database projects breached data
protection and rights laws
 only 6 out of 46 database schemes got “the green light”
Bill of Rights
 Included in the Conservative’s 2010 general election manifesto
 suggested due to controversy over HRA 1998
 HRA used by those who engender little public sympathy (specifically
criminals and foreign nationals facing deportation)
 Coalition government remains divided on this

For:
 Serve to limit the power of the state
 Help to raise public awareness of rights -> contribute to the emergence of a
rights culture (+ve rights rather –ve rights)
 Link the concept of rights to the responsibilities and duties of UK citizens
 Give enhanced constitutional protection to those rights considered
fundamental
 A degree of entrenchment, harder to make ammendments
 Raise public profile of such rights, harder for gov to retract it (in
people’s conscious -> public sovereignty)
Against
 Give the protection already under the ECHR, common law and regular
parliamentary statute
 Entrenchment would undermine the doctrineof parliamentary sovereignty
 Might serve to undermine other rights set out elsewhere but not included in
the new Bill of Rights
 Difficult to decide what to include and what to leave out
 Unlike the HRA
 Simply putting existing regulations into the UK statute

 Uncodified constitution = heart of British political system, should not be

challenged
 US BofR regarded as a model of how fundamental rights can be codified and
protected, but it is really a document that contains contrasting guarantees of
basic freedom