Discover The Facts

What Is The British Constitution?


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Key Questions



Is the Constitution relevant?

  • The Constitution shapes the relationship between citizens and those who govern, and between the country’s different governing organs. 

     

 

 

  • Legislation which has implications for these relationships is ‘constitutional’.  For example proposed legislation to introduce Alternative Voting, in place of First Past the Post, is constitutional since it impacts how we choose the individuals who govern us.

     

 

 

  • Constitutional issues are often raised in other contexts and in circumstances where it is not immediately apparent that those issues have a constitutional impact. By way of example the Butler and Chilcot Inquiries, into various aspects of the Iraq war, heard evidence about the informal nature of decision-making under the Blair administration (Butler Inquiry) and the manner in which advice about the legality of invading Iraq was obtained and considered (Chilcot Inquiry). † More
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    Butler Report - extract 

     

    - “We received evidence from two former Cabinet members, one of the present and one of a previous administration, who expressed their concern about the informal nature of much of the Government’s decision-making process, and the relative lack of use of established Cabinet Committee machinery. …. …..We do not suggest that there is or should be an ideal or unchangeable system of collective  government, still less that procedures are in aggregate any less effective now than in earlier times. However, we are concerned that the informality and circumscribed character of the Government’s procedures which we saw in the context of policy-making towards Iraq, risks reducing the scope for informed collective political judgement. Such risks are particularly significant in a field like the subject of our Review, where hard facts are inherently difficult to come by and the quality of judgement is accordingly all the more important.”  (Section 7.4 paras 606 – 611 - Review of Intelligence on Weapons of Mass Destruction” July 2004.     

     

    Chilcot Inquiry

     

    - Sir Michael Wood (Chief Legal Officer at the Foreign Office from 1999 to 2006) and Elizabeth Wilmshurst, a deputy legal adviser in the Foreign Office gave evidence at the Inquiry which was critical of the manner in which advice was sought and received by the government in relation to the legality of invading Iraq. Transcript of Elizabeth Wilmshurst’s evidence. Transcript of Sir Michael Wood’s evidence) .  Jack Straw's response can be found here. (Note this is an uncorrected transcript)  The Iraq (aka Chilcot) Inquiry was launched on 30 July 2009 to identify lessons to be learned from the Iraq conflict.

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Whatever the final conclusions are from the Chilcot Inquiry, the manner in which the Prime Minister and/or his ministers obtain and deal with information pertinent to their decision-making and how they are held to account in relation to that, are constitutional issues.

 

What are the identifiable features of the British Constitution?

  • It is uncodified and incremental: the British constitution remains a ramshackle construction, which is to be found in statutes, treaties, conventions and other documents, all of which have been pieced together over time and with little coherent ‘purpose’.

     

  • It is flexible, and yet there are several features of the British constitution which do not seem easily amendable by Parliament. † More
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    For example,   the Parliament Acts of 1911 and 1948, the European Communities Act 1972, the devolutionary settlements and the Human Rights Act 1998.

     

  • It is unitary, but the devolutionary settlements in Scotland, Wales and Northern Ireland may not be easily reversed, and may be leading to further shifts in power from Westminster to the devolved regions. † More
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    Britain is a unitary state, meaning ultimate power is held by ‘the centre’—Westminster. The British state consists of four main constituent parts: England, Scotland, Wales and Northern Ireland.  However, as a result of constitutional reforms since 1997, Britain has become a country of a number of devolved regions.

     

  • It is political, in that it is supposed to be Parliament which ultimately determines the shape of the constitution. Arguably it is becoming more ‘legalised’ as the judiciary are required to apply EU law and decide whether some matters are contrary to the Human Rights Act.

     

  • It is uninterrupted and has largely been the product of incremental, peaceful change. † More
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    The relationship between Great Britain and Ireland, and later Northern Ireland, remains the biggest exception to this. The Republic of Ireland broke away from Great Britain in the early 20th century after civil war.  Similarly, as Brazier notes, there would be no need to state that Northern Ireland would cease to be part of the United Kingdom if there were a successful referendum on the matter, if Northern Ireland was unequivocally part of the UK.

     

 

Can the Executive can make changes to the constitution without public consultation?

  • The new Supreme Court came into being following announcements of government policy made in 2003.  It was widely assumed at that time that there would be a process of wider public debate, but in fact the changes were introduced relatively rapidly.  A number of questions remain unanswered about the way in which the existence of the new court will impact on the constitution; some former Lords of Appeal have expressed reservations about the potential impact of the ‘law of unintended consequences’.

     

  • When Britain joined the EU public debates were largely framed in terms of potential economic benefits and there was little discussion of the question of the UK Parliament ceding powers which, historically, it alone had exercised.  The accession to the EU has arguably, therefore, increased the importance of the British courts.

     

  • The Coalition Agreement sets out a number of constitutional changes to be implemented during the current Executive’s term of government.  While any change to the voting system will have to first face a referendum, fixed-term parliaments and reform of the House of Lords will be implemented by Parliament alone.   

     

  • Critics argue that constitutional change should always be legitimised by a referendum.

     

 

How does Europe impact the British Constitution?

  • Britain’s membership of the European Union gives European law primacy over national legislation.  If there is a conflict between the two, European law is held supreme † More
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    an early example of this supremacy is the case of Costa v. ENEL

     

  • The task of enforcing European Law is performed not just by the European courts but also by judges and courts at all levels of the national system.

     

  • Since UK Courts can refuse to enforce UK legislation on the basis that it is incompatible with European law there is a perception or indeed it may be the case that the UK courts have become more powerful.  

     

  • The legal status of British citizens has changed.  People in the UK now have the right to address their legal grievances not only at the national level, but also at the European level.

     

The overarching theme of these changes is Parliamentary Sovereignty.  In theory this fundamental feature of the British Constitution remains unchanged.  Parliament could pass legislation today withdrawing Britain from the EU and Community law would cease to apply at the national level.  On a practical level, however, the implications for Parliamentary Sovereignty are much greater.  The social and economic impact of withdrawal renders any such legislation almost inconceivable.  As such, it is possible to argue that “for all practical purposes and at least for the foreseeable future, the British Parliament is no longer sovereign.” † More

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(King, The British Constitution)

Should the UK reform its constitution?

Constitutional reform is high on the current political agenda.  Proposals for reform to each element of the Constitution, e.g. House of Lords, the Electoral Process etc., are considered in the relevant sections of this website. See also ‘Do we need a written constitution?’.


What you need to know



  • The constitution of a country shapes the relationship between the citizens and those who govern, and between the country’s different governing organs.

     

  • Experts debate how to define the British constitution. It is often said to be “unwritten”, but this is not strictly true because many of the fundamental aspects of the constitution can be found in documents, such as Acts of Parliament.  However, Britain does not have a single ‘codifying’ document, collecting together the fundamental laws of the nation.

     

  • What it has is a mixture of various institutions, statutes, conventions, customs, judicial decisions and treaties, which together can be called ‘the constitution’. 

     

  • Britain is only one of three parliamentary democracies without a codified constitution. The other two are New Zealand and Israel.

     

  • The British constitution is not ‘entrenched’ and there is no document with ‘higher law’ status.

     

  • There is no single or easy mechanism for distinguishing constitutional laws from the rest of the law or for testing whether laws passed or actions taken by governments are ‘unconstitutional’. 

     

  • Unlike other countries, there is no formal procedure which must be followed before changes are made to the British constitution.† More
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    For example in Ireland it is a requirement that there should be a referendum before changes are made to its constitution; in the US a two thirds majority of both Houses of Congress is required, together with the approval of three quarters of the 50 States before a change can be made to the constitution

     

  • The elements which comprise the British constitution are inter-related and changes to one element may have significant repercussions for other elements. 

     

  • There have been a large number of constitutional reforms in Britain in recent times, many of which have taken place on a piecemeal basis and without formal public debate on the long-term implications of such change or consideration of the impact on other elements of the constitution.

     


Why does it matter?



A constitution is the body of rules which lays down the relationship between the individual citizen and the state, and between the different parts of the state: government, parliament and the courts.  The powers which the government has to make and enforce laws, and our rights as citizens, are defined by the constitution, which therefore affects us all.  

The British Constitution has evolved over approximately 800 years and its idiosyncratic nature is largely a reflection of the nation's history. Perhaps because of this complexity, the principles of our constitution are not generally taught in schools which is unusual in an advanced democracy.  

 

As a consequence, many voters do not have a clear idea about the workings of our political system, and so are often ill-equipped to assess the merits of politicians’ proposals for constitutional reform.    

 


What are the key dates?



1215
Magna Carta
1536-42
Union with Wales
1626
Charles I dismissed Parliament, then subsequently recalled it in order to raise taxes
1628
Parliament formed a committee of grievance and presented a Petition of Right to the king to protect subjects from further taxation unauthorised by Parliament
1629
Parliament passed the Three Resolutions:

1. They would condemn any move to change the established religion

2. They would condemn taxation levied without parliament's authority

3. They declared that Merchants paying 'illegal' taxes betrayed the Liberty of England
1640
Oliver Cromwell elected to Parliament for the 2nd time
1642
Outbreak of the Civil war
1646
Charles I surrenders
1649
the Rump Parliament gave parliament the right to make laws without the king's approval
1649
Charles I executed
1649
Parliament abolishes the monarchy
1649
Cromwell chairs the New English Commonwealth
1653
Oliver Cromwell is elected Lord Protector of the Commonwealth
1658
Oliver Cromwell dies and appoints his son, Richard, as his successor
1659
Richard Cromwell resigns
1660
General Monck marches to London, dissolves Parliament and Charles II is invited to resume the throne ('the Restoration')
1685
Charles II dies and is succeeded by his brother James II, a catholic
1689
James II overthrown in the 'Glorious Revolution'
1689
William and Mary invited to become joint sovereigns
1689
Enactment of the Bill of Rights
1707
Union with Scotland
1800
Union with Ireland
1832
(Also 1867, 1872) Reform Acts-extended voting rights and established the secret ballot
1911
Parliament Act
1918
Reform Act-ended property qualifications for men
1921
Anglo-Irish Treaty signed-removes 26 Counties of Irish Free State from UK
1928:
Reform Act-gave equal voting rights to women
1948:
Parliament Act
1972:
European Communities Act
1998:
Human Rights Act
1998:
Scotland Act
1998:
Government of Wales Act
1999:
House of Lords Act
1999:
Greater London Act
2000:
Freedom of Information Act
2005:
Constitutional Reform Act
2006:
Government of Wales Act

What are the key facts?



The sources of the British Constitution are found in:

  • Statutes
  • Conventions
  • Exercises of the royal prerogative
  • The Common law
  • European law
  • International law/Treaties
  • Authorities and precedents

 

 

 

 

 

 

There is no one single document which sets out the British constitution.  Instead, the British constitution can be defined as including:

 

Constitutional principles and doctrines

  • Representative democracy
  • The rule of law
  • The separation of powers
  • Rights of citizens
  • Parliamentary sovereignty

 

 

Primary structures of state

  • The Executive
  • The legislature
  • The judiciary
  • Devolutionary settlements
  • Membership in the European Union
  • The electoral system and political parties

 

 

Constitutional principles and doctrines

Although they are nowhere stated authoritatively, the British constitution is underpinned by fundamental principles and doctrines.

Representative Democracy

In previous times, the monarch ruled Britain, but over time, the monarch’s power of government came to be exercised by her ministers—Members of Parliament elected by the people. Now we say that the Queen reigns, but the government rules with the support of Parliament.

Britain is a representative democracy: we elect people to represent us and make decisions on our behalf at the Westminster Parliament.  Elections are the key mechanism through which governments, parliaments and assemblies are both held accountable, and given the temporary legitimacy to govern us. In Britain, general elections take place usually every 5 years through a first past the post system, in which the candidate who receives the most number of votes in his or her constituency gets to represent that constituency in Parliament as a Member of Parliament.† More

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It is proposed that the current voting system will be replaced by Alternative Voting. This will be put to the public in a referendum in 2011

After 5 years, another general election is held, and we judge the government on its performance, perhaps choosing to allow them to continue; or perhaps preferring to allow another political party—or parties—to become the government.

A similar process takes place in relation to representation at the European Parliament, and in the devolved regions of Scotland, Wales and Northern Ireland, although the electoral system may differ.

The Rule of Law

It is said that the law is above everyone and applies to everyone equally.  This fundamental principle has a number of aspects and values:

  • Legality: all state action must be authorised; law should not be arbitrary
  • Certainty: laws should be clear, certain and predictable
  • Consistency: the law should be applied equally to all; no one is above the law
  • Accountability: laws are necessary to provide a standard to measure the actions of the state
  • Due process and access to justice: no one should be punished without trial; a trial must be fair and held before an independent and impartial tribunal.† More
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    Source Jeffrey Jowell, QC

 

The rule of law can be seen at work in various areas: for instance, administrative law and judicial review is an area of law largely concerned with the fairness of state decision-making; or in the general rule that laws should not be made with retrospective effect.

The Separation of Powers

This constitutional doctrine describes what is, and advocates what ought to be.  It describes government in terms of 3 ‘branches’: the executive, the legislature and the judiciary.

  • The executive (comprising the Government, the Monarchy and the Civil Service) is the body which executes the law—it proposes and enforces the law; it governs the country on a day-to-day basis
  • The legislature is the body devoted to making and changing law
  • The judiciary is the body which interprets the law.

 

The doctrine of the separation of powers also says that state power ought to be divided, so that power cannot be concentrated in any one branch.  In Britain, however, the constitution is characterised by a fusion of the legislature and executive branches.  This is seen best in the institution of Cabinet.  The political party or parties which gain a majority in the legislature (Parliament) has the right to form the executive; and as the executive, the leaders of the successful political party or parties are able to use this majority to pass the laws it wants.† More

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Some argue this fusion of executive and legislature is what makes British government so effective: it allows the executive to act swiftly to respond to changing circumstances, without being too constrained by the other branches. Others argue that this fusion of executive and legislature is dangerous: state power should be dispersed to prevent its abuse.
† More
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  The House of Lords was until recently the final court of appeal, but the creation of the new Supreme Court means that the body which ultimately may interpret laws is now separate from parliament.  It is difficult at this stage to assess the constitutional impact this change has had.  However it is clear that there has been concern amongst some that the judiciary could garner greater power for themselves and put themselves in opposition to government. see BBC News
 

Rights of citizens

Britain has long had a tradition of recognising broad liberties to its citizens, although there have also been numerous occasions where liberties were also denied.  Many of these rights and liberties are now recognised in the Human Rights Act 1998, which incorporates the European Convention on Human Rights.  These rights include the freedom of expression, freedom from torture, the right to freely associate, and the right to a fair trial. † More

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  The HRA includes:

  • the right to life
  • freedom from torture and degrading treatment
  • freedom from  slavery and forced labour
  • the right to liberty
  • the right to a fair trial
  • the right not to be punished for something which wasn't a crime when it was done
  • the right to respect for private and family life
  • freedom of thought, conscience and religion, and freedom to express your beliefs
  • freedom of expression
  • freedom of assembly and association
  • the right to marry and to start a family
  • the right not to be discriminated against in respect of these rights and freedoms
  • the right to peaceful enjoyment of your property
  • the right to an education
  • the right to participate in free elections
  • the right not to be subjected to the death penalty

People also have a right to access information held about them by many public bodies under the Data Protection Act 1998. Under the Freedom of Information Act 2000 there is also a right to ask for information held by a public authority.

 

Public bodies are under a duty to comply with these statutes.  Ultimately, their actions can be measured against these statutes by the courts. Most of these rights are not absolute: very often they are subject to other considerations, such as national security, the public interest, or qualified by competing rights.  So, for instance, the freedom of expression may be limited in order to protect a person’s reputation, or where it may stir up racial hatred.

Parliamentary Sovereignty

The term ‘Parliamentary Sovereignty’ describes the idea that it is Parliament, using the power of the Crown, which enacts the highest form of law, which no other body can challenge.  Until recently Parliament has been regarded as sovereign.† More

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Two key principles followed from parliamentary sovereignty. First, no parliament could bind a future parliament; if one parliament could bind a future parliament, parliament could not be sovereign. Second, no distinction between ‘ordinary law’ and ‘higher law’ should be made. All laws could be changed by Parliament, and Parliament alone. In short, parliamentary sovereignty meant that any law passed by a present parliament could always be amended or repealed—which in turn meant that there could never be a ‘written constitution’ or a bill of rights.

The doctrine of parliamentary sovereignty is now in question.  For instance, since the UK’s accession to Europe, the courts have held that where British and Community law conflict, British law will give way to Community law.  Moreover, recent decisions by the British judiciary suggest that there may be a class of statutes which is ‘constitutional’ and cannot be so easily amended.  This is because these statutes contain values which are fundamental to the relationship between state and citizen. † More

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Examples of this include:

  • the Magna Carta
  • the Bill of Rights 1689
  • the Acts of Union 1707
  • the Reform Acts
  • the European Communities Act 1972
  • the Scotland Act 1998
  • the Government of Wales Act 1998
  • the Human Rights Act 1998

 

See Thoburn v Sunderland City Council [2002] EWHC 195 Admin

It is currently not known to what extent the new Supreme Court will regard itself as having the right or obligation to challenge Parliament or the Government.

 

The Government’s dominant role over Parliament (as it has always had a majority in the Commons) means that the work of Parliament is in fact the work of a very few.  Arguably, it is not Parliament that is sovereign but a small group—the Prime Minister and the Cabinet.  This has led many to question the legitimacy of parliamentary sovereignty, which implicitly relied on checks and balances within Parliament.

 

The Primary Structures of the British State

The Executive

The Executive comprises the Crown and the Government

  • the Crown This is a peculiarly British term, which can mean the state; less correctly, the government; or the monarch.  In law, the Crown is the source of law and justice.  In practice, the Crown’s powers are exercised by the government—democratically elected Ministers
  • the Government  This is the body of people who run the country on a day-to-day basis —it includes the Prime Minister and Cabinet, the Civil Service, the police and army.

The Legislature

The legislature comprises the Crown and Parliament.  Parliament is the body which, in conjunction with the Crown, makes and changes the law.  It consists of the House of Commons and the House of Lords.

The Judiciary

The Judiciary is the body which interprets the law and provides one means of keeping the government in check.  There are three different legal systems in England and Wales, Scotland and Northern Ireland.  The Supreme Court is the final court of appeal for England and Wales and Northern Ireland.

Devolutionary settlements

As a result of constitutional reforms since 1997, Britain has a number of devolved regions.  The term ‘devolutionary settlements’ refers to the agreements made with the devolved administrations of Scotland, Wales and Northern Ireland. 

Membership of the European Union

Britain has been a member of the European Union (or its predecessor organisation) since 1973.  The EU consists of 27 member states and has an estimated combined population of 501 million. The original purpose of the EU—then the European Economic Community—was to create a single European market with uniform trading conditions and the free movement of goods and services. However, the EU has since expanded and now impacts on the UK at multiple levels in multiple ways—from consumer rights to environment policy.  For the most part the UK is required to implement and modify domestic laws and policies so that they are in harmony with the EU.

The electoral system and political parties

The electoral system is a set of rules for translating the public’s votes into seats in the legislature.  Electoral systems are important because they determine the allocation of seats in a legislature, and the size and shape of government.

Currently, general elections in the UK are held using the majoritarian system of ‘first past the post’: this is a ‘winner takes all’ system in which the candidate who gains a majority of votes in a constituency wins a seat in Parliament, and unsuccessful candidates and those who vote for them are given no recognition.  At a devolved level, the electoral system is usually one of proportional representation—political parties are represented in the legislature in accordance with the proportion of votes received. 

Political parties are the ‘unspoken secret’ of the British constitution.  Political parties are fundamental to the political system: they mediate the diverse and competing interests of the United Kingdom and synthesize them into manageable packages which electors can understand.  However, political parties are also dominant in candidate selection (and de-selection) in constituencies; the political leaders; individual MPs through party discipline; the policy choices available to voters and political discussion generally; and in the case of the political party acting as the Government, the resources of the state. 

Overseas territories

The United Kingdom also manages a number of territories which, while mostly having their own forms of government, have the Queen as their head of state, and rely on the UK for defence and security, foreign affairs and representation at the international level. They do not form part of the UK, but have an ambiguous constitutional relationship with the UK. These are the Crown dependencies and the British Overseas Territories.  Whilst they do not form part of the United Kingdom, these territories may, nevertheless, be affected by changes to the British constitution.† More

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The Crown dependencies are the Channel Islands of Jersey and Guernsey, and the Isle of Man. They are not considered part of the UK: they have their own ministerial forms of government and systems of law—UK law does not extend to them. However, the Queen is the head of state in each, local legislation is passed through the Queen and the Privy Council, and the Crown is ultimately responsible for the good government of each dependency. http://www.dca.gov.uk/constitution/crown/bg-info-crown-dependencies.pdf The British overseas territories are territories which were previously colonies. They have their own internal government, and are not part of the UK. However, all British overseas territory citizens have automatic British citizenship under the 2002 British Overseas Territories Act; the head of state is the (British) Queen; the Crown is responsible for the management of foreign affairs, defence, and often internal security and the public service.

There are 14 British overseas territories:

  • Anguilla
  • The British Antarctic Territory
  • Bermuda
  • The British Indian Ocean Territory
  • The British Virgin Islands
  • The Cayman Islands
  • The Falkland Islands
  • Gibraltar
  • Montserrat
  • St Helena and Dependencies (Ascension Island and Tristan da Cunha)
  • Turk and Caicos Islands
  • Pitcairn Island
  • South Georgia and South Sandwich Islands
  • Sovereign Base Areas on Cyprus

Partnership for Progress and Prosperity: Britain and the Overseas Territories (HMSO 1999, Cmnd 4264)

http://collections.europarchive.org/tna/20080205132101/fco.gov.uk/Files/kfile/OTfull.pdf

 

The Sources of the British Constitution

The British constitution is found in a number of sources:

Statutes

These are laws passed by Parliament.  Generally speaking, statutes are the highest form of law in the land.  If a statute and the royal prerogative, common law, or convention conflict, the latter must give way to the statute.† More

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Examples:

  • Magna Carta 1215
  • Bill of Rights 1689
  • Reform Acts 1832, 1867, 1872, 1918, 1928
  • Human Rights Act 1998
  • Scotland Act 1998

Conventions

These are unwritten practices and understandings which must be taken into account in order to understand how government works.  Sometimes, conventions are simply the recognition of changed circumstances.  For instance, in law, the Queen is the source of all power; but in practice it is ministers— the Cabinet—who exercise executive power.  Other times, conventions are means of ensuring smooth and efficient government. † More

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Examples:

  • o Cabinet: this itself is established by convention—every government ultimately needs a central decision-making body.
  • o The Salisbury-Addison convention: states that the Lords will not obstruct the passage of legislation set out in the government’s election manifesto.
  • o The Sewell convention: Westminster will not legislate on a matter devolved to Scotland without first seeking the consent of the Scottish Parliament.

The Royal prerogative

This is a residual, but still very important, set of powers once held by the monarch but now exercised by the Government.  These powers may be limited by statute. † More

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Examples:

  • Powers relating to the legislature

* E.g., the summoning, proroguing, and dissolving of Parliament

  • Foreign affairs:

* E.g., the ratifying of treaties

  • The armed forces:

* E.g., the control and organisation of the armed forces

  • Appointments and honours:

* E.g., the appointment of ministers, peers

  • The prerogative power in emergencies

Source: http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf

There are also prerogative powers personal to the Queen. † More

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  • The personal immunity of the sovereign from being sued
  • The power to appoint the Prime Minister
  • The power to dissolve Parliament
  • The power to assent to (and perhaps refuse assent to) legislation

Source: http://www.parliament.uk/commons/lib/research/briefings/snpc-03861.pdf

The common law

This is the law developed incrementally by the courts and judges through cases.  Often thought of as a key characteristic of the British constitution, common law has largely been overtaken by statute law.  However, it still provides a source of principle for the British constitution. † More

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Examples:

o Prohibitions Del Roy (the Case of Prohibitions) (1606): in response to King James’ argument that as the fount of justice, he too could decide cases,  Chief Justice Coke insisted that the King could not do so; only the judges, learned in the law, could.

o Entick v Carrington (1765): a key case illustrating the rule of law—that the state can only do that which is expressly authorised by the law.

European law

Britain’s accession to the European Communities Act 1972 meant that in many areas UK law is now subordinate to European law.  European law includes the law of the EC Treaties, community legislation and the decisions of the European Court of Justice.  This source of law is becoming increasingly important. † More

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Examples:

o Maastricht Treaty 1992: established the European Union; a timetable was set for the Euro currency; EU responsibility was expanded; new rights for European citizens were created. 

o McGonnell v United Kingdom (2000): the European Court of Human Rights held that a hearing by the Royal Court of Guernsey was incompatible with the European Convention on Human Rights’ right to a fair trial by an independent impartial tribunal. This led to the modification of the office of the Lord Chancellor and the removal of the Judicial Committee from the House of Lords.

International law

This is law developed by international courts and tribunals, lawyers and governments, and consists of treaties, customs and cases.  Although often international law will only apply where the UK explicitly agrees to its application (for instance, by signing and ratifying treaties), international customary law is automatically part of UK law. † More

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Examples:

  • The Warsaw Convention: international agreement dealing with liability for persons, luggage and goods carried by air.
  • Vienna Convention on Consular Relations: deals with the privileges and immunities of diplomatic missions—that is, diplomatic immunity
  • The Pinochet Cases: the House of Lords held in a series of cases that head of state immunity was limited: it could not cover international crimes or crimes against humanity.

Authorities and precedents

Because the British constitution cannot be found in any single document, politicians and lawyers have often relied on various scholars’ works to locate and understand the constitution. † More

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Examples:

Walter Bagehot The English Constitution (1867)

Albert Venn Dicey Introduction to the Study of the Law of the Constitution (first edition 1885; fifth edition 1915)

Sir Ivor Jennings The Law and the Constitution (first edition 1933; fifth edition 1959)

 

History

In the middle ages Monarchs established the practice of calling representatives of the aristocracy and the boroughs and counties to provide them with advice.  These two councils became the Lords and the Commons respectively, collectively Parliament.  The history of Parliament is the history of an ever changing pattern of balance and readjustment of the relative powers and obligations of the monarch, the nobility and the people.   

Throughout history there has been a tension between the theoretically all-powerful monarch and his subjects.  In 1215 a rebellion of barons led to King John signing Magna Carta, which although not originally intended to be seen as a bill of rights, subsequently became viewed as such.  Two of its most important statements ensured the right not to be imprisoned without a fair trial (known as habeas corpus) and the right of access to free and fair justice.  The right to habeas corpus (subsequently enacted as a statute) remains in existence today.† More

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Michael Zander QC, Emeritus Professor of Law at the London School of Economics, says: "Habeas corpus has a mythical status in the country's psyche. In reality it is no longer of great practical significance as there are today very few habeas corpus applications, but it still represents the fundamental principle that unlawful detention can be challenged by immediate access to a judge - even by telephone in the middle of the night." There are many ways in which the right to habeas corpus has been superseded by statutes e.g. the Police and Criminal Evidence Act 1984, but nevertheless when Governments take action to suspend or limit habeas corpus this is likely to excite a public outcry, as with the Prevention of Terrorism Act 2005 which gave the Home Secretary the right to impose control orders on suspected terrorists.

Up to the latter part of the 17th century, Parliament had two main functions: to give legitimacy to laws which the Monarch wanted to enact, and to give consent to taxation.  Parliament therefore existed to assist the Monarch and until the political upheavals of the 17th century, sovereignty was still vested exclusively in the Monarch.  † More

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The English Civil War had many causes, but the raising of taxes without the consent of Parliament and threatened changes to the established religion were two factors that brought the conflict between monarch and Parliament to a head.  The war resulted in the execution of King Charles I and the declaration of  a New English Commonwealth in 1649, with Oliver Cromwell as chairman and subsequently as Lord Protector.
The restoration of the monarchy in 1660 represented a compromise, in which power was shared between Parliament and the Monarch.   The Bill of Rights of 1689 coincided with the invitation to William and Mary to become joint sovereigns of England and it is from this time that we can date our Parliamentary democracy as we know it today.  † More
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The Bill of Rights 1689 listed certain rights to which citizens of a constitutional monarch were thought to be entitled.  The Bill of Rights remains in force today and some of its articles are still of relevance to our democracy today, such as:

• Parliament should be frequently summoned and that there should be free elections (articles 13 and 8); 

• Members and Peers should be able to speak and act freely in Parliament (article 9); 

• No armies should be raised in peacetime and no taxes levied, without the authority of parliament (articles 4 and 6); 

• Laws should not be dispensed with or suspended without the consent of parliament (articles 1 and 2).

• That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (article 10)

 

The composition of the House of Lords also owes much to history.  Until as late as 1958, the composition of the House of Lords comprised almost exclusively hereditary peers - that is those who had inherited a title and the right to sit in the House of Lords through birth.

The 1958 Act provided for the appointment of life peers - those appointed to the Lords until their death and with no ability to pass on the title and right of membership of the Lords to their heirs.  The 1999 House of Lords Act abolished all but 92 of the 750 hereditary peers.  The moves to reform the composition of the House of Lords in this way came about not only because of concerns as to the democratic legitimacy of a second house whose members owed their position only to an accident of birth, but also because of concerns that a house drawn only from the 'elite' would fail to represent the views of the nation as a whole.

Prior to 1958 and because the majority of hereditary peers were conservative, the Conservatives had a majority in the House of Lords.  With the introduction of life peers from a more diverse political spectrum, the Conservative majority in practice slowly became a relative majority and there emerged ‘Crossbenchers’—peers independent of both political parties.  More importantly, the 1999 Act ended the Conservatives’ relative majority in the Lords. The House of Lords is ‘hung’—and since no party has a majority, there must be negotiation between the various groups within the Lords to ensure the passage of legislation. † More

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Life Peerages 1958-2008: on average, 24 peerages created annually. Since May 1997: on average, 36 peerages created annually.1957: 871 peers in total. 1999: 1325 peers in total. Source: www.parliament.uk
  

The appointment of life peers also began the professionalisation of the Lords, by introducing a broader range of skills and expertise and more diversity in membership.  But it is also worth noting almost one quarter of peers were once MPs. † More

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Changes in attendance and work

  • 1956-7: 103 sitting days; average sitting 4 hours; average number attending 112 peers of a possible 871.
  • 2007-8: 164 sitting days; average sitting time 6 ? hours; average daily attendance was 415 of a possible 744.

  Sources: www.parliament.uk, Bogdanor 2003


References and Links



Sources and Further Reading

Ferdinand Mount The British Constitution Now (Heinemann, London, 1993)

 

Vernon Bogdanor (ed) The British Constitution in the Twentieth Century (Oxford University Press, Oxford, 2003)

 

Jeffrey Jowell and Dawn Oliver The Changing Constitution (sixth edition, Oxford University Press, Oxford, 2007)

 

Anthony King The British Constitution (Oxford University Press, Oxford, 2007)

 

Rodney Brazier Constitutional Reform: Reshaping the British Political System (third edition, Oxford University Press, Oxford, 2007)

 

Vernon Bogdanor The New British Constitution (Hart Publishing, Oxford, 2009)

 

Robert Hazell: “Anthony Sampson Memorial Lecture: Britain’s Constitutional Reforms: Trivial or Transforming?”

 

The Bill of Rights 1689  House of Commons Standard Note: SN/PC/0293 Author: Lucinda Maer and Oonagh Gay Parliament and Constitution Centre

 

Key websites

House of Commons Parliament and Constitution Centre

http://www.parliament.uk/works/notes_on_parliament_and_constitution.cfm

 

House of Lords Select Committee on the Constitution, First Report: Reviewing the Constitution: Terms of Reference and Method of Working

http://www.publications.parliament.uk/pa/ld200102/ldselect/ldconst/11/1102.htm

 

The Prime Minister’s Office

http://www.number10.gov.uk/

 

 The United Kingdom Cabinet

http://www.cabinetoffice.gov.uk/

 

 The United Kingdom Parliament

http://www.parliament.uk/

 

The Supreme Court of the United Kingdom

http://www.supremecourt.gov.uk/index.html

 

The Governance of Britain

http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/publications/governanceofbritain.htm

 

The Governance of Britain: an Update

http://www.parliament.uk/commons/lib/research/briefings/snpc-04703.pdf

 

Smith Institute “Towards a New Constitutional Settlement”

http://www.smith-institute.org.uk/smith-engine/_filesmgr/File/TowardsaNewConstitutionalSettlement.pdf




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