What is a constitution?
A constitution is a set of rules that determine how a country is governed. Many countries, such as the USA and France, have written constitutions that Britain does not.
Constitutions tend to include the following:
- clear details on elections and how they should be carried out (and when)
- the precise powers of the executive, the legislature and the judiciary, their relationships and how they can be removed
- where the final power (sovereignty) actually lies with the electorate (or the citizens)
- the key rights of citizens, which guarantee their freedom
- the type of government of the country; the US government is specifically stated to be Federal and Democratic.
Sources of the constitution
- If Britain does not have a written constitution, then where are the rules?
- Changing a written constitution or adding to it should be a simpler task - you could find the relevant clause and either delete or amend it. For example, the US Bill of Rights (1789-91) consisted of the first ten amendments to the US constitution.
- An unwritten constitution poses different problems - where can we find the rules? How can they be changed?
- We know what the basic rules are, but where do they come from?
Certain powers and authority of the PM and cabinet come directly from the monarch and not the parliament. These powers include the right to:
- declare war or sign a peace treaty
- send troops to fight in a conflict
- appoint ministers
- give honours to individuals
- raise funds to pay for soldiers
- appoint judges
- maintain law and order
These powers are applicable to individuals (e.g. the prime minister or a minister of state) and collectively (the cabinet as a whole).
Examples of royal perogatives
- In 1982, Margaret Thatcher sent troops to the Falkland Islands to liberate it from Argentinean invaders
- In the early 1990's, John Major negotiated the terms of the Maasticht Treaty (which passed the right of the British government to make policy in certain areas to the EU)
- In 2001, Tony Blair decided on the date of the election and then changed his cabinet around after winning the election
- In 2003, Tony Blair sent troops to Iraq to remove the dictator Saddam Hussein.
Conventions are unwritten rules of constitutional behaviour. They are customs of political practise that are usually accepted by all and observed by all. There are several key examples of this:
- The prime minister comes from the House of Commons (an elected MP)
- The monarch accepts the advice of the prime minister
- The monarch always gives Royal Assent to bills which have passed through the House of Commons and the House of Lords by signing them
- Ministerial responsibility - the minister accepts resonibility for actions carried out by their department
- Collective responsibility - the whole cabinet accepts responsibility for other cabinet minister's decisions
- Referendums - it has now become a convention that before any major change to the constitution, a referendum is held by the government.
Common and statute law
- Common laws are usually principles that have developed and been applied in British courts
- Where the law is unclear, it is the role of the judges to clarify the rules
- New rulings always take precendence over earlier decisions and they become the guidelines for other judges' work
- In the NHS, for example, there is a common law duty of confidentiality. This means that information about a patient cannot normally be disclose without the patient's consent.
- Statute law is law that has been created as part of the legislative process
- Statute law is implemented by the executive and enforced by the judiciary
- This type of law is seen to be the superior form of law and can overrule conventions. It is also considered to be the most important source of rules and principles of the constitution.
Written and unwritten constitutions
- There are only three countries in the world that have an unwritten constitution - the UK, New Zealand and Israel
- Most countries have a written constitution which tend to establish the underlying principles of broad framework of government
- The US constitution is only 7,000 words - they do not need to be overly long
- The British constitution is actually written - just not in one document.