UK Constitution

The UK constitution and system of government

The UK Constitution is an unwritten constitution, in that it is uncodified. There is no one single constitutional document, unlike for example the US Constitution. Instead the UK constitution consists of laws, customs and conventions, works of authority, treaties, and court judgements. Thus its success is very reliant on how it is interpreted by key actors and the sophistication of the UK political culture.

Since there is no one means of amending the Constitution, various complex situations can arise which can involve negotiation and agreement to get a result that moves things forward.

Laws and statutes

The UK Constitution has evolved over a very long time and thus the importance of past practice and custom is very strong. However at key points in British history significant advancements were made, mainly based in statute and law.

These times were of major crisis, such as King John’s conflict with his barons or that between the Stuart Kings and Parliament, that together are regarded as part of the UK Constitution. These include

  • Magna Carta (1215 and subsequent re-issues): a Charter granted by the monarch; right to a trial by peers, freedom from arbitrary arrest and no taxation without representation. It established the principle of the rule of law. Magna Carta is now almost entirely superceded by other more recent laws
  • Petition of Right (1628): affirmed rights and liberties such as freedom from arrest, and seeking to ban non-Parliamentary taxation,
  • Habeas Corpus Act (1679): to further limit arbitrary arrest, in that an arrested person would have to be charged or freed
  • Bill of Rights (1689): confirmed the role of Parliament and the principle that laws passed by Parliament and agreed to by the monarch were supreme. Parliament was to meet regularly, elections were to be free and freedom of speech in Parliament was confirmed
  • Act of Union (1707) and the Acts of Union (1801): under which Scotland and Ireland respectively were incorporated into what became the UK
  • Parliamentary Reform Acts, between 1832 and 1949 that gradually extended the right to vote, the Secret Ballot Act (1872) to help prevent corrupt influence on voters, or the Parliament Acts of 1911 and 1949 that asserted the supremacy of the elected House of Commons over the then-hereditary House of Lords
  • European Communities Act (1972): incorporated EEC (now EU) legislation into UK law, which in effect limited the sovereignty of Parliament, when the UK joined the EEC
  • Devolution legislation (1998): setting up devolved assemblies in Scotland, Wales and Northern Ireland
  • Human Rights Act (1998): incorporated the European Convention on Human Rights into English law
  • Constitutional Reform Act (2005): created the Supreme Court and removed from the House of Lords its judicial function as court of last resort
  • Fixed term Parliaments Act (2011): limits the power of the Prime Minister, through the Royal Prerogative, to call an election at a date of his/her choosing by specifying a fixed length to a Parliament and a procedure by which which this might be varied

Convention

The constitution operates according to a set of conventions, particularly parliamentary ones. Thus the following between the monarch and the democratically-elected element are key to how the system works:

  • The monarch acts on the advice of her ministers
  • The monarch appoints the leader of the party with the largest number of seats in the House of Commons after an election to form a government
  • The monarch grants the royal assent to bills passed by Parliament
  • The monarch dissolves Parliament on the request of the Prime Minister and summons another one, ie triggers an election
  • Parliament can in theory force the removal of a minister by impeachment, whereby the Commons prosecutes and the Lords act as judges

Others relate to how Parliament and the legislative process works. Examples include:

  • No Parliament can bind its successor. Thus what one Parliament passes into law, another can repeal. This is an old convention which is now disputed by some given the UK’s membership of the EU, which is supposed to be permanent. Others argue that this convention remains and under Article 50 of the Lisbon Treaty a member state can give notice to leave and that that process must be completed within 2 years
  • The House of Commons alone has the power to pass a motion of No Confidence in the government, thus triggering its resignation, and possibly then an election

Much of how the system of government works is by convention, ie custom and practice. Thus when some action is questioned there will be an enquiry into past practice and precedent.

Concentration of power: A key characteristic of the UK system is the concentration of power in the Prime Minister and the majority he/she heads in Parliament, which we can see operates by convention. This is in contrast to for example the US system of the separation of power between the three “branches of government”, the President (executive), Congress which in turn is separated into a Senate and House of Representatives (legislature) and the Supreme Court (judiciary). Not surprisingly, the latter was created after some very harsh experiences under the former!

Some constitutional authorities argue that the UK operates a “practical separation of power” in terms of the day to day working of the system. For example in practice certain regulatory bodies are set up by legislation and put into operation under “Orders in Council” by the Queen’s Privy Council, in effect under the Royal Prerogative, but regarded in practice as independent. However there is no separate body to police this practical separation of power.

Works of authority

Thus in part the UK Constitution is reliant on authoritative written commentaries which are consulted when a view is needed on an action, the most well-known of which are:

Parliamentary Sovereignty

Parliamentary sovereignty is the doctrine that the will of the UK Parliament is supreme and its supreme action is an Act of Parliament. There is no body to declare an Act unconstitutional as such, unlike for example the US Supreme Court. No Parliament can bind its successor (ie. another Parliament that meets after an election) and what Acts it passes can be repealed by it.

Parliament is technically the “Queen-in-Parliament” in that there are three components, the Queen, the House of Lords and the House of Commons. Legislation, an Act of Parliament, must pass through all three institutions to become law.

The Monarch

The Head of State is the monarch, a hereditary position but entirely non-political and strongly committed to democracy and to respecting the results of popular elections.

The above conventions relate to the conduct of the monarchy in relation to Parliament and her Prime Minister. Her actions are part of the Royal Prerogative, which also includes activities like creating peerages and other titles, and appointing a Privy Council (which today consists of key politicians and among other things serves as a final court of appeal for certain Commonwealth countries)

Parliament

The House of Lords is now an almost entirely nominated body, consisting of “peers of the realm” appointed by the Monarch on the advice of the Prime Minister, 26 Bishops of the Church of England and 92 hereditary peers representing the hereditary peerage. Some ministers are peers. It has a delaying power to legislation, being able to hold up a bill until a new Parliament assembles which can be up to approximately one year. This recent situation about its membership was supposed to be a temporary one since 1999 while a different way of composing membership was agreed between the parties. However so far no agreement has emerged. Various ideas have been put forward to make it more elected.

The House of Commons is the elected part of Parliament and ministers are mainly derived from this chamber. Today it is usual for the PM to have a seat in the Commons. The Prime Minister needs a majority in this House to form a government, although in the past the PM has operated without a majority for a while. Ministers of the government will introduce legislation normally in the House of Commons but often in the Lords instead to relieve pressure of business.

Popular sovereignty

Recent events have led many observers to conclude that there is now a countervailing principle to Parliamentary sovereignty, that of sovereignty of the people. Until recently this has been an alien concept, given that sovereignty has historically resided first in the monarch and then from the 17th Century the “King (or Queen)-in-Parliament”, with the monarch retaining residual powers via the royal prerogative now exercised by the Prime Minister. However, with the recent uses of the instrument of the referendum to first confirm UK membership of the then-EEC in 1975 and then to leave the EU in 2016, it can now be argued that certain fundamental decisions are given over by Parliament to a popular decision by referendum.

In both the above cases, parties in Parliament were divided over membership of the now-EU and thus to give legitimacy to an institution, in this case EU membership, popular consent was needed. It can also be said to apply to how devolution was set up, whether Scotland would stay in the UK Union (2014) and electoral reform (2011). Vernon Bogdanor has argued that “It is coming to be a convention of the constitution that such decisions need to be validated by referendum” (ft.com 10 Dec 2016-paywall).

Given the on-going question of the legitimacy of UK insitutions and processes, it is an interesting development that popular sovereignty maybe now exists as a last-resort resource to political disagreements and that consent is required for a continuation or a major change to such arrangements.

Rule of Law

This now very old principle is that the Law is supreme, no one is above the Law, and all are equally bound by it, the associated principle of equality before the law. Thus any person’s actions can be subject to legal scrutiny. Thus as stated above, all have an equal right to a trial and there are strict limits to imprisonment without a trial. An accused is regarded as innocent until proved guilty. Actions of the executive can be tested in the Courts and can be ruled ultra vires (having no legal force).

The Supreme Court is the final court of appeal. Judges are now appointed through an independent Judicial Appointments Commission, since 2006. Since 2009 the Law Lords ceased to hear final appeals in the House of Lords but sat as a separate Supreme Court. It also decides on cases that may breach the European Convention on Human Rights and thus has been building considerable case law in this area. In practical terms, the judiciary is independent of the executive and parliament.

The police, while subject to democratic control by elected Police Commissioners for regional forces and the Home Secretary for the Metropolitan Police, work under a principle of operational independence through which they enforce the law.

Common law is seen as part of the UK Constitution since it has as its original custom and practice dating back to early medieval times. This is judge-made law which refers to past precedent. Thus Parliamentary statutes rely for practical detail on common law and judicial interpretation and there is thus an important interlinking of statute and common law.

It should be said that there is a separate legal system for Scotland, which works in some important areas differently to England and Wales. Northern Ireland also has its own legal system

Treaties

Treaties are put into effect by an Act of Parliament, include the European Communities Act (1972) which followed the UK signing the Treaty of Rome, and the Human Rights Act (1998) which put into effect the European Convention on Human Rights. These measures can then be enforced in the courts.

The EU and devolution

Two important modifications to the UK Constitution have been the EU (since 1972) and devolution (1998). Both have made effective limitations on the main constitutional doctrine of the sovereignty of Parliament.

The EU has a legislative power which is enforced through the UK courts. Some argue that this makes the EU law’s supremacy in effect a “Constitutional Law”, while others argue that Parliament is ultimately supreme through the doctrine of parliamentary sovereignty. One view is that as the EU was joined via a treaty, simple repudiation of the treaty is sufficient for it to be recognised in the courts.

Devolution of power through the creation of devolved assemblies in Scotland, Wales and Northern Ireland by Act of Parliament established local legislative bodies, which are creating their own body of law. After negotiations between the UK government and the “national” or devolved governments, the powers of these devolved assemblies have been growing. As a result of the Scottish Referendum (2014), various proposals have been put forward for further devolution, most recently the Smith Commission, and what happens awaits the 2015 general election.

It should be said that in the past the UK government has struggled to healthily channel nationalist aspirations. In the 19th century, the Irish Home Rule League under Parnell persuaded Gladstone to propose home rule for Ireland but the resulting divisions in Britain and Ireland, and the intervention of war, allowed the opportunity to slip, the nationalist cause was taken over by Sinn Fein, and the Irish Revolution and independence ensued (1922).

Human Rights

There is no one documents or statute defining human rights in the UK. Under the Human Rights Act (1998), this was to some extent modified in that there is a final reference point in the European Convention on Human Rights (EHCR) which has been enacted into UK law.

Many in the Conservative Party in the coalition (2010-15) have been wanting to repeal this act because  of what is regarded as excessive interference by the EHCR and there are many who want to replace it with a UK Bill of Rights.

Blog posts about Constitution-related issues

UK Constitution under pressure

UK and devolution

UK and EU

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