The British Constitution

Introduction

• A Constitution fulfils a number of functions in any political system. It,– Lays down the principles on which the State is based, for

example, is the State based on the liberal notion of the rule of law.

– Defines how power should be divided within the system for example between the executive, legislature and the Judiciary and, in a federal system, between national and regional government.

– Defines, and perhaps guarantees, the nature of the relationship between the State and its citizens for example what civil rights citizens may enjoy. These rights may be clearly set out in a Bill of Rights

• The British system is virtually unique in that the British Constitution is uncodified.

• This is only possible because Britain, even with devolution, is a unitary state. If it was a federal state it would require a codified constitution in order to clearly define the relationship between national and regional levels of government.

• When a state has a codified constitution the judiciary tends to be more important as it acts as an arbiter in disputes over the meaning of the constitution. An excellent example of this is the USA.

The US Supreme Court

Sources of the British Constitution

• The sources of the British Constitution can be found in six areas. They are:– Statute Law– Common Law– Royal Prerogative– Conventions– Works of authority– The European Union

• Because of the way that it has developed the British Constitution is often described as evolutionary rather than revolutionary.

Principles of the British Constitution

• Liberal democracy is at the heart of the British Constitution. In the British system this comprises of two key principles:– Parliamentary

sovereignty– The rule of lawJohn Locke

Parliamentary Sovereignty

• Parliamentary Sovereignty means that Parliament is the only institution that can make laws in the UK. These laws cannot be overruled. This is in contrast to the USA.

• The principle of parliamentary sovereignty is not found in any single piece of legislation but has developed as a result of Common Law.

• Parliamentary Sovereignty is subject to a number of modifications in the 21st Century. These include:– The influence of the mass electorate

– Referendums

– The Party System

– Political reality

– Extra – parliamentary pressure

• Also parliamentary sovereignty has been affected by Britain’s membership of international bodies, especially the European Union. Up until 1998 this was most commonly seen in disputes over the European Convention on Human Rights.

The European Parliament

The Rule of Law

• The rule of law is a concept that tries to ensure that laws are applied fairly to all citizens in a State.

• It has been suggested that in practice the rule of law is made up of five elements:

– Legal Equality

– The just law

– Legal certainty

– Innocent until proven guilty

– Independence of the Judiciary

Importance of the Rule of Law• It is argued that the rule of law provides a mechanism by

which parliamentary sovereignty can be held in check. This is usually written into codified constitutions.

• However there have been criticisms of this theory. These are based on the assumptions that governments have become more cavalier in the way they use their power in recent years.

• This is made worse because Britain is essentially run by an elective dictatorship. The rule of law is not very effective at checking this.

• It could be argued that the rule of law is an effective check on the executive. This can be seen by the increasing willingness of courts to call into question the actions of government.

2 Models of the British Constitution in Practice

• Two commonly used models of the British Constitution are:– The Liberal Model– The Whitehall Model

• These centre around how power is divided up in practice in the British system.

The Liberal Model

• This model places Parliament (House of Commons) as the most powerful institution in the British system.

• Parliament has total control over legislation.• Parliament has indirect control over government

and the administration and can hold ministers to account.

• Parliament draws its power from the ‘sovereignty of the people’.

Problems with the Liberal Model

• Problems include:• The Liberal model completely ignores the

importance of government in the British system. Most legislation starts at Whitehall rather than Westminster.

• There is no place for the Monarch in the Liberal system. Ministers are appointed by the Crown and government enjoys significant prerogative powers.

• The Liberal model also ignores the House of Lords.

The Whitehall Model

• In the Whitehall model government has to take account of the views of Parliament and may even be removed if Parliament is unhappy but the legislature does not have the right to interfere with the day to day running of the country.

• Governments act according to what they perceive to be public interest rather than because they are bound by Parliament.

Problems with the Whitehall Model

• The Whitehall model takes no account of the fact that governments are formed from the majority party in Parliament.

• It ignores the importance of elections.• It ignores the fact that Parliament provides a

valuable training ground for Ministers all of whom are former backbenchers and future members of the Opposition.