The British Political System

The UK Constitution

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Definitions A constitution refers to the way in which a country is governed. It covers the main framework of government and the relationship between the state and the people including individual rights.

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A constitution can be defined in two ways: 1. "A document having legal sanctity setting out the framework of the organs of government. E.G. S. Wade, Constitutional Law, London, 1931, This covers those countries which have a written document called the constitution. Almost all countries have such a constitution but such a document needs to be supplemented by other legislation and practices.

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The UK does not have such a document and therefore tends to prefer a wider definition: 2. "The system or body of fundamental principles according to which a nation, state or body politic is constituted and governed." (The Shorter Oxford English Dictionary - a paraphrase of A.V.Dicey "The Law of the Constitution" 1885). This is a wider definition that fits the UK.
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Unwritten Character The UK has no one written document called the constitution and it is often described as unwritten. This is something of a misnomer. It is mainly written down but not in one document. It would be better to describe the UK constitution as uncodified. The UK constitution is located in various places:-

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Sources of the Constitution 1. Laws a) Statute Law Laws passed by Parliament about the organs of government e.g. the Parliament Act 1949, the Peerage Act 1963, or individual rights e.g. the Human Rights Act 1998.
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b) Case Law or Common Law Cases decided by judges many of which determine individual rights e.g. the common law wife, and rape in marriage. c) Community Law EC legislation has become part of our constitution insofar as it affects the system of government or individual rights. E.g. the Social Charter.

The Lord Chief Justice Lord Phillips

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d) Parliamentary Privilege (the law and custom of Parliament) This refers to certain rights which Parliament has which protects their freedoms and procedures. The chief privileges today are:i) The Commons regulates its own procedures and can punish members and the public for breach of privileges or contempt of Parliament. ii) MPs are exempt from action for defamation for words spoken in Parliament. This preserves their freedom of speech.
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e) Delegated legislation Parliament passes some statutes in skeleton form and allows ministers to fill in the details. Where these affect individual rights or government institutions they could be said to be part of our constitution.

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2 a) Historic Documents Certain documents have become accepted as part of our constitution because they contain important principles e.g. Magna Carta 1215 (the right to a fair trial it also limited the power of the monarch) and the Bill of Rights 1689 ( the rights of Parliament against the Monarch).
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b) Advisory Opinions Certain writers are considered to have written authoritative works on the constitution e.g. A.V. Dicey "The Law of the Constitution" (1885) and Walter Bagehot "The English Constitution" (1868)

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3. Conventions These are rules of political practice that cannot be enforced in courts of law. Dicey defines them as:- "An obligation which compels obedience in the absence of the ordinary means of enforcing a legal rule through the orders of a court."

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Conventions derive from custom, expediency, and agreement. It is this aspect of the constitution which has led to Britain's constitution being called "unwritten" though in fact they are written down and consistently followed, though they are not always precise.

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The importance of conventions In the UK and other countries conventions fill in the gaps which are not filled by law. "Conventions provide the flesh that clothes the bones of law" Sir Ivor Jennings The Law and the Constitution (1933).

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Britain is unique in the extent of its conventions. They cover much of the central relationship between our institutions of government e.g.
the position of the monarchy the relationship between government and Parliament the relationship between the two houses and the machinery of government

are all mainly governed by convention.

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Other countries have conventions e.g. The US President is regarded as the legislative leader. Each Congressional session he presents a program of legislation that becomes its main source of legislation. The US constitution was written using the doctrine of separation of powers, Congress's job is to make the laws and the President's is to make sure they are carried out. The Constitution does not say who should suggest draft legislation.
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The President has no power to pass a law, but is free to suggest one and ask that the legislators pass it. Early presidents were not very active in the legislative process. During the nation's first century, the Congress drafted, as well as passed, nearly all legislation. Around the turn of the twentieth century the US president became accepted as legislative leader.
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In other words the US Constitution gives the President no role whatsoever in making the law but by convention he is very much involved. However he cannot ensure that legislation is passed. In a good year he may get 2/3rds of his legislation passed in a bad year only 1/3rd. A British PM would normally get 99% 18 passed.

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The reasons why conventions are followed:1 A belief that it is right to obey them because they are reasonable rules or are part of a reasonable structure of rules which ought to be preserved and upheld.

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2. A fear of disrepute in public opinion and its political implications. It would be politically inadvisable to break them e.g. the position of the Monarch and the Government and Opposition.

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3. Age enhances their authority. 4. In a very few cases if a convention was broken then as consequence a law would be broken e.g. if Parliament did not meet every year then two thirds of taxation and spending would become illegal.

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5 Expediency collective responsibility is followed to maintain party unity and to present a united front to the Opposition and the nation. Occasionally conventions have been converted into law if broken e.g. 1911 Parliament Act.
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Continuity of Development The constitution has developed over centuries - there has been unbroken development since 1689. This is the major reason why we have not had a written constitution.

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Written constitutions are normally adopted because there has been some major change.
Revolution e.g. French Revolution 1789 War e.g. France 1940 & 4th Republic

Germany 1949
Independence US 1787, India 1950 Major upheaval e.g. French 5th Republic 1958

UK has had nothing like this since 17th century.

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Flexibility and Rigidity A flexible constitution is one where there are no special procedures necessary in order to change it and it is consequently easy to change. The UK is said to have a flexible constitution. Changes in the UK constitution can come about through changes in the law or through changes in conventions. 25

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A rigid constitution is one which is difficult to change. There are special procedures to change it e.g. in the US a constitutional amendment needs a two thirds majority in both Houses of Congress and then it has to be ratified by three quarters of all the States Legislatures.
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A Written Constitution for the UK In recent years there has been a greater call for constitutional change in the UK. The Liberals and the Alliance supported wholesale constitutional changes. Subsequently the Liberal Democrats have called for a written constitution. The prominent Conservative Lord Hailsham called for a written constitution in 1975.
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The Labour and Conservative parties have not advocated such change though the Labour party supported a large number of constitutional changes in the period 1997 2010. A pressure group Charter 88 (Now Unlock Democracy) was set up in 1988 to campaign for constitutional change and a written constitution.
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The Coalition Government has a large number of constitutional proposals including Fixed-term, 5 year parliaments. The creation of fewer and more equal sized constituencies A referendum on voting reform. Give voters power of recall of MPs.
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Arguments in favour of a Written Constitution 1

1. Proponents of a written constitution want a rigid constitution which would be difficult to change and would preserve our rights and system of government against change. 2. They argue that our constitution is too vague and that there is a need for clarity e.g. the position of the monarch over calling a general election.
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3. There are insufficient checks upon the government. The Commons is an insufficient check since a government with an overall majority can push through the legislation that it wants. The Lords is not an effective check because it has limited powers and it is afraid to use them. In 1975 Lord Hailsham described the government as an "elective dictatorship" by which he meant that once elected the government had almost no checks upon it 31 and could do almost as it liked.

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4. The courts are not an effective protector of individual rights because they are bound by statutes. The supporters of a written constitution would see a need to protect rights by a Bill of Rights as part of a more rigid constitution. The Human Rights Act only goes part of the way to protect rights.
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Arguments against a Written Constitution for the UK 1

1. A rigid constitution is essentially conservative in nature and would not change with the times. A flexible constitution can change with the moods and ideas of the time. 2. A rigid constitution would limit a democratically elected government.

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3. A written constitution would be interpreted by judges. Judges are accused of being conservative in nature and are unelected. There is also the danger of politicisation of judges i.e. if the only way of changing the constitution is via a change in the interpretation then there will be a temptation to appoint judges on a party political basis.
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4. There is no need for a written constitution because the present system of checks and balances are sufficient safeguards. The system of checks and balances includes:i) The Official Opposition in the Commons. ii) The actions of backbench MPs and the limitations of the loyalty of party members.
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iii) The Lords. iv) The effect of public opinion. The government wishes to win the next general election and is therefore sensitive to the opinions of pressure groups, the Opposition and the media. vi) The Supreme Court. vii) The European Court of Human Rights. viii) The European Court of Justice. A variation on this argument is that there is no need for a written constitution whilst the constitution is being adhered to.
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5. The best defence of personal and political liberties is the vigilance of the politicians and the public.

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