The UK Constitution

What is a Constitution?

  • A constitution is a body of laws, rules & principles that sets out the way in which a state or society is organised.  It establishes the relationship between a state and its citizens.
  • It also provides the framework of a politicial system by establishing the main institutions of government, determining where authroty resides and protecting the basic rights of citizens.
  • In liberal democracies, a constitution protects against any abuse of power by the state by providing for a system of limited government; this allows checks and balances to be carried out.
  • The judiciary is empowered to use the constitution when deciding if the government has acted in a lawful and legitimate way or if it has acted 'unconstitutionally'. 

Key features of Britain's constitution: uncodified, flexible, 'unwritten'. 

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Codified vs Uncodified

  • Codified Constitution - all of the fundamental rules and principles that govern the opreation of a given state and many, if not all, of the principles that underpin it are set out in a single, authoritative document.
  • Examples: the USA, France, Denmark, Australia, Iceland.
  • Codified constitutions are usually produced at a critical juncture in a nation's history (e.g. US Constitution: newly found independence, 1789), and are afforded the status of fundamental law and therefore placed high above ordinary laws made by the legislature. Provisions are entrenched and so special procedures are needed for amendment; rigid (e.g. US Constitution has only been amended 17 times since the 1791 Bill of Rights, a collective 10 amendments). 
  • Uncodified Constitutionhas no single source for the rules and principles that govern the state; they are instead found in a number of different places. Often referred to as being 'unwritten' - inaccurate.
  • Examples: UK, New Zealand, Isreal, Canada, Saudi Arabia.
  • The absence of any entrenched and superior funamental law as a result of a constitution being uncodified means it is easier to amend - in the UK, can be done by a simple Act of Parliament. Also, the doctrine of Parliamentary sovereignty means that Parliament (not the constitution) has legislative supremacy.
  • William Blackstone: "Parliament can do everything that is not naturally impossible".
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Sources of the UK Constitution (1)

  • 1) STATUTE LAW- laws created by Parliament.
  • Acts have to be approved by the House of Commons, the House of Lords and then the monarch before they are placed on the statute books at which point they become law, implemented by the exectuive and enforced by the courts.
  • Not all Acts are of constitutional importance as not all refer to the relationship between the state (and its institutions) and the citizens; e.g. the 1991 Dangerous Dogs Act cannot be considered constitutional law.
  • But, statute law is the supreme source of constitutional law due to Parliamentary sovereignty. 
  • Examples: Great Reform Act 1832, Parliament Acts 1911 & 1949, European Communities Act 1972, Scotland Act 1998, Human Rights Act 1998, Fixed-term Parliaments Act 2011.
  • 2) COMMON LAW - legal principles that have been discovered, developed & applied by UK courts.
  • Judicial review is used to clarify/establish a legal position where statute law is unclear or absent.
  • This case law forms a body of legal precedent that serves to guide both the lower courts and future lawmakers.
  • BUT, Parliamentary sovereignty and the supremacy of statute law means that the government of the day can overturn such common law precedent through Acts of Parliament; so UK courts can never be said to have declared a government's actions 'unconstitutional' - only unlawful. 
  • Example: the royal prerogative; powers exercised by the crown (e.g. the right to appoint ministers, give royal assent to legislation, declare war and negotiate treaties). But prerogative power to dissolve Parliament ended in 2011. 
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Sources of the UK Constitution (2)

  • 3) CONVENTIONS
  • They are not codified / legally enforcable, but the 2011 Cabinet Office Manual sought to bring them into one document.
  • Their usage over an extended period of time gives them authority.
  • Example: the monarch must give their assent to Acts of Parliament (hasn't refused consent since 1701).
  • 4) AUTHORITATIVE WORKS
  • They hold no formal or legal status but have 'persuasive authority' and can help identify, interpret and understand the core values of the constitution.
  • Examples: Walter Bagehot's 'The English Constitution' (1867), A.V. Dicey's 'An Introduction to the Study of the Law of the Constitution' (1885).
  • 5) EU LAW & TREATIES
  • 1973 - UK became member of the EEC (European Communities Act 1972), later the European Union (1991).
  • The treaties that established the EU, legislation that emanated from the EU, and the judgements of the European Court of Justice all became part of the British Constitution.
  • Treaty of Rome, 1958 - European law takes precedence over UK law
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Principles of the Constitution (1)

  • PARLIAMENTARY SOVEREIGNTYcornerstone of the UK constitution, means that Westminster Parliament is the supreme law-making body and can legislate on any subject of its choosing. Legislation cannot be overturned by any higher authority, so no Parliament can bind its successors. Advantage: constitution is easy to amend, can evolve with time. Disadvantage: doctrine of parliamentary sovereignty undermines the judiciary.
  • THE RULE OF LAWdefines the relationship between a state and its citizens and ensures that state action is limited and responsible; fundamental principle of liberal democracy. Has 3 main strands: no-one can be punished without trial, no-one is above the law, and judgements must be made by an independent judiciary. Advantage: helps maintain judicial neutrality (everyone equal under law).
  • A UNITARY STATE - although Britain is made up of 4 different nations, it is still a highly centralised state in which legal sovereignty lies with Westminster. In a unitary constitution, subnational institutions do not have autonomous powers that are constitutionally safeguarded and regional governments may be weak/non-existant. Despite this, polticial and cultural differences have survived with the coming together of 4 nations in the UK. Opposite: federal.
  • PARLIAMENTARY GOVERNMENT UNDER A CONSTITUTIONAL MONARCHYgovernment takes place through Parliament; ministers are therefore politically accountable to Parliament and legally accountable to the crown, and must face re-election every 5 years. Between elections, government relies on its majority on the HofC to survive. The balance of power has changed over time; Glorious Revolution of 1689 established the supremacy of Parliament over the monarch, and though the monarch retained all formal powers, their usage was constrained.
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Strengths & Weaknesses - UK Constitution

  • Adaptability - UK constitution has evolved gradually under different circumstances, and reforms have enabled it to adapt without the need for parliamentary supermajorities or referendums.
  • Strong government- traditional constitution provides for strong & effective government, as day-to-day power resides with the executive (despite parliamentary sovereignty) due to government being conducted by the parties; therefore the governing party often has the majority in the HofC so can control legislation & achieve policies.
  • Accountability- government is accountable to parliament and the electorate; parliament will scrutinise the government and the electorate will show their dissatisfaction at the general elections.
  • Outdated & undemocratic- key elements of common law (e.g. the royal prerogative) date back to medieval times.
  • Concentration of power- power is dangerously concentrated at the centre with few safeguards against the arbitrary exercise of state power; 'elective dictatorship'. Because it is uncodified, key elements go unprotected. 
  • Lack of clarity- not always clear where a government has acted unconstitutionally; parliament is the final arbitrator. Citizens find it hard to engage in the system because their rights are poorly defined/entrenched.
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Reform since 1997 (1)

NEW LABOUR AND CONSTITUTIONAL REFORM, 1997 - 2010

  • Labour promised constitutional reform driven primarily by 4 themes of change: modernisation, democratisation, decentralisation and rights. Most of the reforms came about under Blair (1997 - 2001), and though reform was important to Gordon Brown's administration (2007-10), the economic crisis collided with his short time in office.

Rights

  • Human Rights Act (HRA) 1998 - enshrined most of the provisions of the ECHR into British law. The HRA required the government to ensure that legislation is compatible with the ECHR, so all bills introduced (at Westminster or the devolved assemblies) are reviewed by lawyers to ensure they are HRA-compatible.
  • UK courts can now hear cases under the ECHR (used to be done only in Strasbourg) but they cannot automatically overturn incompatible legislation - that is left up for ministers to decide.
  • Signatories to the ECHR have the right to request a derogation from its provisions when they are facing a crisis that threatens national security: after 9/11, UK government forced a derogation from Article 5 of the ECHR (the right to liberty & security) to allow the detention of foreign nationals suspected of terrorist activity.
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Reform since 1997 (2)

Devolution

  • Involves the transfer of certain executive & legislative powers from central government to subnational institutions.
  • 1999 - power was devolved to new institutions in Scotland, Wales and Northern Ireland after referendums. The new system was one of 'asymmetric devolution'; the devolved bodies have different powers and distinctive features.
  • Scottish Parliament - given primary legislative powers across a range of policy areas, as well as tax powers. The Scotland Act 2012 granted the parliament tax-raising powers and greater responsibility over issues such as education.
  • Welsh National Assembly - initially weaker than Scottish Parliament as it only had secondary powers, so could only implement legislation passed by Westminster.
  • Northern Ireland Assembly - granted legislative powers over a similar range of policy areas as Scottish Parliament but does not have tax-raising powers.
  • These changes didn't turn the UK into a federal system but some use the term 'quasi-federalism' to describe it. 

Power was also devolved to regional and local governments; in London, a new directly-elected mayor was given significant power in areas such as environment and transport (led to intro of congestion charge in London), and the London Assembly was created to scrutinise the mayor's actions. Ouside London, all local authorities were obliged to reform their political management.

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Reform since 1997 (3)

Parliamentary Reform

  • House of Commons - changes to the PM's Question time and working hours of the House were significant. Brown's 2010 'Governance of Britain' Green Paper aimed to limit the powers of the executive and make it more accountable to Parliament but progress stalled (crisis). Some other changes wre made (e.g. chairs of select committees to be elected by backbenchers) but they were of little constitutional significance. 
  • House of Lords: House of Lords Act 1999 - abolished the right of all but 92 hereditary peers to sit and vote in the House; now mainly comprised of Life Peers with no overall party majority. Labour made less progress with the 2nd stage of reform for the Lords; introduced many bills for debate but there was a fundamental division between the Lords and the Commons regarding how reform shoud progress. The Commons favoured a partially/entirely elected 2nd chamber, the Lords favoured appointments.

Judiciary

  • Constitutional Reform Act (CRA) 2005: Supreme Court (Oct. 2009) became the highest court in the UK and removed the judical role of the House of Lords; role of Lord Chancellor was greatly reduced; provided for separation of the judiciary from the legislative and the executive branches of government; secured judicial independence.
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Reform since 1997 (4)

CONSERVATIVE REFORM 2010-2016 (IN COALITION WITH LIB DEMS)

  • Fixed Term Parliaments Act 2011 - established a pattern of fixed elections every 5 years, starting in 2015. It removed the ability for the PM to call an election at a politically advantageous time, but as seen in 2017, it had limitations.
  • The Scotland Act 2012 - gave the Scottish government the power to vary income tax by 10p in the pound, and devolved further powers to the Scottish government. Also allowed them to borrow up to £2.2bn per year.
  • Protection of Freedoms Act 2012 - offered citizens greater protection from the state by putting in place proper scrutiny of the security services and oversight of surveillance & data collection.
  • House of Lords Reform Act 2014 - gave peers the right to retire or resign their seats, and also allowed peers to be removed as a result of serious criminal offences or non-attendance. 54 peers resigned under the Act by 2016, with 4 removed due to non-attendance.
  • The Wales Act 2014 - transferred control of some smaller taxes to devolved institutions in Wales and provided the legal framework required for a Welsh referendum on the partial devolution of income tax.

THE CONSERVATIVES AND REFORM FROM 2015 ONWARDS

  • 2016 Scotland Act: the Scottish government was given greater fiscal autonomy, and under the Wales Act 2017, the Welsh Assembly was granted tax-raising powers. 
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Should the UK have a codified constitution?

ARGUMENTS FOR A CODIFIED CONSTITUTION

  • Would provide greater clarity, with rules set out in an authoritative document.
  • Groups such as Unlock Democracy (Charter88) and the Lib Dems favour reform.
  • The rights of citizens would be given constitutional protection, with limits set on the executive.
  • Greater thought would have to be given to the principles of our current constitution.
  • The process of drawing one up would hopefully educate citizens while allowing the political system to be legitimate.

ARGUMENTS AGAINST A CODIFIED CONSTITUTION

  • Codification would remove the adaptability & flexibility of the current constitution; harder to evolve over time.
  • Would be too rigid and too difficult to change.
  • Current constitution functions very well; is reflective of British politics and society, doesn't need to be codified.
  • Would be incompatible with parliamentary sovereignty.
  • There is little popular demand for a codified constitution and no agreed process on how it should be done and what exactly should be included.
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Judicial Independence

Judicial independence is a concept enshrined in law by the CRA (2005) which provides for the separation of the judiciary (legal system) from the executive (government) and the legislature (Parliament).

Judicial independence is protected in Britain through separation of powers:

  • Judges hold office during good behaviour; can't be removed because of their judgements.
  • Higher judges are barred from Parliament membership.
  • Judicial salaries are not controlled by government, but by an independent branch (security of tenure also).
  • 2006 Judicial Appointments Commission selects judges now, before sending recommendations to Lord Chancellor.
  • Creation of the Supreme Court (2009) under the CRA shows clear separation.
  • Political neutrality - make their decisions based on the law rather than political alignment, etc. 

It is tradition that the remarks and sentences of judges should not be subjected to Parliamentary debate or criticism but this doesn't always work as politicians become tired of 'meddlesome' judges - e.g. in 2013 Theresa May (then Home Secretary) accused judges of going against the wishes of Parliament by ignoring rules aimed at deporting more foreign criminals.

Lord Hailsham: "parliamentary criticism is subversive of the independence of the judiciary". 

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Judicial Neutrality

People as Judges

  • 'Pale & Male' - criticism as judges are traditionally white, middle-class, upper/middle-aged, privately educated men.
  • Only 28% of judges are female, less than 5% come from an ethnic/minority background.
  • Judges need to have served as barristers for at least 5-7 years. Average age of a judge in 2013 was 68 years old.
  • Because judges are older and often Oxbridge-educated they are accused of bias towards social reform and ethnic minorities (e.g. militant demonstrators often recieve harsh criticisms from judges).

Are Judges Neutral?

  • 1995 Kilmuir Guidelines - principles that restricted the freedom of judges to speak out on public policy matters.
  • In theory, judges are suposed to be neutral, impartial and apolitical - but this is rarely the case.
  • Judges can get caught up with political controversy - e.g. Lord Hutton was asked to enquire into the death of David Kelly, former weapons inspector who committedd suicide (2003) after suggestions that the case for military action against Iraq had been 'sexed up' - the findings of such enquiries can inspire criticism of the judge involved.
  • Could argue that judicial neutrality is observed through adherance to the principle of the rule of law, under which all citizens are equal, regardless of gender, race, class or political affiliation.
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Judicial Activism

Judicial Activism - when judges and the courts take a broad and active view of their role as an interpreter of the constitution and reviewers of executive and legislative.

Judicial Restraint - a conservative approach that maintains that judges should simply apply the law, irrespective of policy implications or the judge's own values.

Judicial activism has increased in recent years through:

  • Creation of the Supreme Court (2009) which extended separation of powers - judges have more independence
  • The ECHR and the HRA (1998) - judges are more politicised.
  • European Communities Act 1972 - judges have to ensure UK law doesn't take precedence over UK law (e.g. Factortame, 1990 - UK courts can suspend parliamentary statutes if they contravene EU law).

Cases where judges have been accused of being too politicised/active:

  • 2016 - 3 Supreme Court judges ruled that the government needed consent of Parliament to give notice of Brexit - Daily Mail labelled them 'enemies of the people'.
  • 2016 - Judiciary argued that the Investigatory Powers Bill went against the HRA's right to privacy - government have until November 2018 to make the bill compatible with European regulations.
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5 marks

  • Explain the term 'flexible constitution'.
  • Explain the term 'judicial independence',
  • Explain the term 'the judiciary'.
  • Explain the term ' European Court of Human Rights'.
  • Explain the term 'judicial review'.
  • Explain the term 'codified constitution'.
  • Explain the term 'entrenched provisions'.
  • Explain the term 'rule of law'.
  • Explain the term 'judicial precedent'.
  • Explain the term 'conventions'.
  • Explain the term 'civil rights'.
  • Explain the term 'parliamentary sovereignty'.
  • Explain the term 'human rights legislation'.
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10 marks

  • Explain why the Human Rights Act (HRA) may draw judges into the political fray.
  • Explain why the absence of a codified constitution in the UK has traditionally resulted in judges having a limited role in interpreting the constitution.
  • Explain why the British constitution allows the political system to adapt easily to changing circumstances.
  • Explain why, in practice, parliamentary sovereignty is not undermined by the Human Rights Act.
  • Explain why the creation of a Supreme Court has taken the UK some way towards a separation of powers.
  • Explain why having a flexible constitution may leave British citizens without adequate protection from the government.
  • [Identify and] explain two sources of the British constitution.
  • Consider the extent to which Parliament may be said to have undermined the independence of the judiciary.
  • [Identify and] explain reasons why judges may have been accused of being 'driven by a human rights agenda'.
  • [Identify and] explain two ways in which the British constitution regulates the conduct of government.
  • [Identify and] explain two arguments for having common law as part of the constitution. 
  • [Identify and] explain the difference between a unitary and federal constitution.
  • Explain the principle of judicial review in the British system of government. 
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25 marks

  • Discuss the view that the UK does not need a codified constitution.
  • 'Recent constitutional developments have led to an increasingly political role for judges.' Discuss.
  • 'The absence of a separation of powers in Britain gives the government too much power.' Discuss.
  • 'The British judiciary is both independent and impartial.' Discuss.
  • 'There is now an overwhelming case for a codified UK constitution.' Discuss.
  • 'Judges in Britain now have too much power over the decisions of democratically elected politicians.' Discuss.
  • 'The case for Britain retaining its unodified constitution remains extremely strong.' Discuss.
  • 'The British constitution isn becoming increasingly codified.' Discuss.
  • 'The sources of the British constitution give it both stability and flexibility.' Discuss.
  • 'Neutrality and independence are central features of the British judiciary.' Discuss.
  • 'The increasing power of judges in Britain strengthends the principle of separation of powers.' Discuss.
  • 'The British judiciary has become increasingly politicised.' Discuss.
  • 'The British constitution leaves the government with more power.' Discuss. 
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