Types of Constitutions
Codified and Uncodified Constitutions
- A codified constitution is one which is written in an organised way in a single document, it has a single source. The USA has a codified constitution.
- An uncodified constitution is one which has not been written down in a single document in an organised form. It can be partly written and unwritten but cannot be found in one single form.
- The British constitution is written from a number of different sources these include: statute (e.g. law), conventions (e.g. holding of general elections on Thursday's), common law (e.g. judges rulings), written works of constitutional importance (e.g.milestones in the development of the constitution) and treaties.
- There are two other types of constitution called unitary and federal. The UK is said to have a unitary structure within its uncodified constitution, and the US is said to have a federal structure within its codified constitution
- There is an ongoing argument in Britain to whether we should keep a uncodified constitution or adopt a codified one, we will explore this in due course.
Codified or Uncodified?
Arguments for retaining a uncodified constitution
- Firstly, we can argue that it is more flexible. It can change to the adapting world without major upheavals. The government can pass a new Act relatively quickly when they need to. If it was codified it would be difficult and time consuming. For an example, after 9/11 it was very easy for government to pass anti-terrorism measures, whereas it was more difficult for the US. It was the same case after WW2.
- The idea of conservatism is that "if it ain't broke, don't fix it", the UK has enjoyed a stable political system without a codified constitution. Furthermore, it would be a extremely difficult exercise to change the constitution into single, written form.
- It allows the executive to be strong and decisive, because constitutional safeguards are weak or absent.
- Finally, the UK operates under a large number of unwritten conventions, especially in relation to the monarchy and prerogative powers. It would be very difficult and time consuming to transfer them into written form.
Codified or Uncodified?
Arguments against retaining an uncodified constitution
- Having a codified constitution would clarify the nature of the political system to citizens, especially after changes such as devolution and House of Lords reform.
- Britain would have a two tier legal system and so constitutional laws could be more clearly identified.
- The process of judicial review would be more precise and transparent.
- Liberals argue that it would have the effect of better safeguarding on citizens' rights.
- It might prevent the further drift towards excessive executive power.
- The UK needs to clarify its relationship with the European Union.
- Finally, it would bring the UK into line with other modern democracies like the USA.
The UK constitution
- Apart from the fact that it is uncodified the British constitution has many other characteristics. Firstly, it is not entrenched meaning that it is not specially safeguarded against change. It can be changed very quickly and very easily by Parliament.
- Secondly, Britain is a constitutional monarchy and has royal prerogative.Since 1688, the monarchy has not enjoyed absolute power. Parliament only had the power to restrain the monarch's ability to raise taxes.
- Royal prerogative refers to the traditional powers enjoyed by the monarch, these powers do not require the sanction of Parliament, but are arbitrary. These powers have moved through time to the Prime Minister.In practice, the monarch remains the head of state, but the Prime Minister is seen as the head of state because it is they who carry out the monarchs functions.The monarchy is limited by firm constitutional rules.
The UK constitution
- Thirdly, parliamentary government and parliamentary sovereignty. This is the idea of a fusion of powers in British politics. Parliamentary government is a political system where Parliament is a central feature. Government is drawn from Parliament and is accountable to Parliament.
- Though the government is politically dominant, this does not make it legally sovereign. Legal sovereignty - the ultimate power to make laws that will be enforced- lies only with Parliament. Parliament can even dismiss a government e.g. James Callaghan's Labour Government of 1979. This principle of Parliamentary sovereignty must not deflect our attention away from the powers of government.
- Fourthly, party government. The British constitutional system can operate only in the context of party control. A single party is in control of the executive branch and is usually in control of the majority of the Commons. The principles of collective responsibility, mandate and manifesto, government and opposition and patronage all rely upon the reality of party control. The whole relationship between the Executive and Parliament relies upon the dominance of parties and their control.
- Lastly, unitary government. This is that Parliament is legally sovereign.
To what extent are there limits to sovereignty in Parliament?
- Sovereignty refers to the ultimate power that can be exercised within the state. In the UK Parliament is legally sovereign, however at the time of elections it is said to be the voters who are sovereign.
- The UK joined the EU in 1973, and at the time the concern was that Parliament could be overruled by the EU in Brussels. This was illustrated in the Factortame case where the European Court of Justice struck down EU fisheries legislation.
- However, the UK parliament can withdraw the country from the EU and Parliament remains sovereign over key issues like the economy and foreign affairs.
- Devolution is another aspect which limits Parliamentary sovereignty. Devolution transfers powers from the UK Parliament to Scottish, Welsh and Northern Irish Parliaments. This can lead to greater calls for nationalism in these countries. We have seen the rise of the SNP (Scottish Nationalist Party) in Scotland as a result of devolution
- However, the Westminster Parliament retains the right to alter these powers or to reverse devolution entirely.
- Finally, the powers of the Prime Minister have increasingly became a factor in limiting Parliamentary sovereignty.
- If their majority is big enough, they can make, amend and repeal laws. They ultimately have control over Parliament e.g. Tony Blair 1997-2005 we saw this.
- However, prime ministerial power is only temporary. And since Tony Blair lost his large majority in 2005, we have seen Parliament challenged on laws like hunting for an example.
- Following the 1997 General election, Labour introduced many constitutional reforms: House of Lords, House of Commons, Human Rights Act 1998, Electoral reform, Freedom of Information, London Government, Local Government, Devolution, Referendums, Party Registration and the electoral commission and the reform of the Judiciary.
- House of Lords Reform has taken place in two stages. Stage 1 took place because hereditary peers had easily let Thatcher's Poll Tax through as a part of legislation in 1988. It consisted of decreasing the number of hereditary peers to 92. The next part of reform was written down in the Wakeham report and this consisted of, there were to be no more hereditary peers in the House, the rest of the House was to be appointed, an independent appointments commission would appoint them and powers of the Lords would remain unchanged. It was never implemented. Stage 2 was never implemented either.
- Human Rights Act came about because in 1998 the European Convention on Human Rights was incorporated into British law. It meant rights such as freedom of speech, fair trial and freedom of information where made law.
- Electoral reform was another part of constitutional reform. Blair introduced elected mayors using the supplementary vote system and UK elections to the European Parliament were done by the regional list system. Blair promised a referendum on electoral reform for General elections in 1997 but this never came. The Labour party remained divided and as a consequence no progress was made. The government believed there was more important issues to be dealt with like education.
- Devolution was an important part of constitutional reform. It was introduced in 1997 to Scotland and Wales after successful referendums. In addition, the UK government devolved powers to the Northern Irish Assembly as well. Scotland received administrative devolution, legislative devolution and financial devolution, Northern Ireland received all but financial devolution and Wales received only administrative.
- Finally, the reform of the Judiciary has taken place since the Constitutional Reform Act of 2005. The Lord Chancellor was no longer head of the Judiciary, instead the Lord Chief Justice became head of the judicial system instead. A new Judicial Appointments Commission was set up to propose candidates for promotion to senior judicial positions. Lastly, the law lords will be removed from the House of Lords and sit in a new Supreme Court.