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The UK constitution and its core institutions Introduction 'What is the constitution?

?' A US citizen might answer 'It's a document in Washington DC guaranteeing our liberties.' Most other nations also have a document labelled 'the constitution' which has some ind o! a special status over and above the respect owed to ordinary laws. A British citizen" on the other hand" will not find it so easy to reply. Although the Magna Carta o! #$#% might be &ointed to as one source o! 'ritish liberties" there is no single document labelled the 'British Constitution'. (his does not mean" o! course" that !unctions o! a written 'constitution' do not need to have e)uivalents in a

modern Western democrac* such as the United +ingdom. In !act" these !unctions are described in a variet* o! sources" including 'constitutional' cts of !arliament and constitutional 'conventions'. In this cha&ter we will !irst loo at some classi!ications o! di!!erent t*&es o! constitution. We will then start to e,amine !eatures o! the U+ constitution" commonl* re!erred to as 'the Westminster model' and the e* &artici&ants.

Classifications As we e,amine the traditional wa*s in which constitutions have been distinguished" it is ver* im&ortant to remember that there is alwa*s a ris o! over-sim&li!ication i! we do not recognise the com&le,it* o! the historicall* constructed and o!ten untid* institutions which the* describe.

". #ritten and unwritten A written constitution re&resents an attem&t b* &oliticians and statesmen to codify all the important laws and rules relating to the way in which the state will be governed. (he as&iration is usuall* to include everything which is important in a single document. Although" historicall*" the writers o! constitutions have derived ideas !rom other constitutions" the $rench and U% constitutions being &articularl* influential internationally" but there is no universal blueprint !or what should be included. Inevitabl*" differing decisions will be made b* di!!erent statesmen as to what is sufficiently 'constitutional' to be included.

(he lac& of a single overarching constitutional document for the United Kingdom &erha&s re!lects its uni'ue history in which there was no single moment o! national &olitical consensus when a serious attempt was made to set out all the constitutional arrangements in a coherent !ramewor . (he nearest attempt was made in the centur* a!ter the civil wars between the /o*alists and 0arliament. During the 0rotectorate when there was no ing" (liver Cromwell drafted his 'Instrument of )overnment' which set out how 1ngland" Wales" Scotland and Ireland were to be ruled. This document was abandoned and not replaced when +ing Charles II was 'restored' to the throne a!ter Cromwell's death.

*. +igid and fle,ible (he im&ortance o! the sub2ect matter o! a constitution means that most people will see the value in its stability. Countries where there is constant conflict between elected politicians and -udges amid uncertaint* about the rules governing their relationships are not usually happy ones. 3onetheless" !rom time to time" &olitical and social changes ma* mean that the e,isting constitutional arrangements have to change and ada&t. (he process of changing the constitution ma* be very difficult in a rigid constitution" such as the U% " or relativel* straight!orward in a fle,ible constitution such as the United Kingdom.

Consider the method b* which the United Kingdom shared its political sovereignty with other 1uro&ean states when it entered the 1uro&ean Communit* 4now the 1uro&ean Union5 in #6.$. A sim&le ct of !arliament was passed .i.e. the /uropean Communities ct "01*2 and" although a referendum was subse)uentl* held to endorse the decision" there was no constitutional re'uirement to hold one. '* wa* o! com&arison" when the Irish government wished to change the .written2 Irish constitution to &ermit divorce in #66%" it was obliged to hold a re!erendum. /emember" though" both constitutional changes were politically very difficult for the Irish and British governments.

3. +epublican and monarchical (he United Kingdom is o!ten described as a constitutional monarchy. Its head of state is an unelected &ing or 'ueen who 'reigns' over his or her 'sub2ects'. Although the &resence o! the current monarch" 7ueen 1lizabeth II" is still &ervasive on coins" stam&s and letterbo,es" but the constitutional significance of her status is much diminished. 8ord 'ingham has stated9 o (he political power of the monarch has diminished to vanishing point" since the &ersonal directions which remain are ver* limited" must be e,ercised according to clearl*understood &rinci&les and cannot be regarded as an e,ercise o! inde&endent &ower in an* ordinar* sense.

(he formal powers of the monarch" re!erred to as &rerogative &owers are now largely e,ercised by the head of the government4 the !rime 5inister. We will discuss the signi!icance o! the Crown" re&resenting the government" and the &rerogative &owers in more detail in Cha&ter .. (here are a variet* o! republican constitutional models. :ne clear distinction is between those states that give the elected head of state 4usuall* nown as the president5 significant political power" such as ;rance and the USA" and those whose &residents are meant to represent the nation as a whole and be above the political fray 4 for e,ample )ermany.

6. Unitary and federal (he political and governmental arrangements o! a nation re!lect man* !actors" including" o! course" its history. (he geogra&h* o! the state is also o!ten signi!icant. ;ederal %tates which have a very large land mass with diffuse centres of population have been com&elled b* reasons o! &racticalit* to adopt systems of government where many aspects of decision ma&ing are divided among the legislatures of provincial or state assemblies or &arliaments. )overnmental functions that are seen as trul* national" including !oreign a!!airs" are e,ercised b* a national legislature.

Such s*stems o! government are nown as !ederal" with Canada and the U% being obvious e,am&les. 0olitical and constitutional con!lict between !ederal legislatures and &rovincial or state governments are ver* common in man* !ederal countries.

Unitar* In man* 4though not all5 smaller countries" government from the centre is accepted more readily" with much wea&er local government. Such &olitical s*stems are re!erred to as unitar*. Ireland is an e,ample. (he United Kingdom has operated for centuries as a state with man* !eatures o! a unitary constitution. (he UK !arliament in #estminster" 8ondon" has legislated for the whole of the United Kingdom" although it has always recognised the distinctiveness of Scotland" in &articular" through various conventions.

$ollowing the introduction of devolution" granting political power to elected assemblies in #ales and 7orthern Ireland and an elected %cottish !arliament" the unitar* as&ects o! the U+ constitutional model have been diminished. It is now more appropriate to describe it as a 'multilayered' form of government. We will discuss devolution in more detail in Cha&ter #<.

Key participants in the UK constitution Consider the !ollowing diagram9

;igure $.# Court (he structure o! the court system is fairly orthodo, when com&ared to legal s*stems in other 2urisdictions. (he Su&reme Court is at the a&e, o! the a&&eal s*stem and the &rogression o! a case from the lower courts to the %upreme Court via the Court of ppeal seems logical and coherent.

0arliament and =ovt When we e,amine !arliament" however" we have some curious !eatures. (he head of government" the !rime 5inister" must be a member of the 'lower' 8ouse4 the 8ouse of Commons. (he cabinet is drawn from both the 8ouse of Commons and the 8ouse of 9ords 4i.e. the u&&er >ouse5 and the prime minister's personal powers are derived largely from the historical prerogative powers given to the monarch. longside the cabinet and government in the diagram" we can see the civil service. An im&ortant as&ect o! government is that the ministers who form the government need help to achieve their ob-ectives.

Unli e in some countries" such as the U% " where there is a convention that senior civil servants are replaced when a new government is formed" the traditional a&&roach in the United Kingdom has been !or senior civil servants to remain in post. (he neutrality of the civil service has been 'uestioned in recent years in the light o! the growing importance of politically partisan 'special advisers' whose roles have sometimes brought them into conflict with professional civil servants.

The '#estminster model' (here are a number o! e* !eatures that have been identi!ied in the s*stem o! government o! the United +ingdom. o (he government is drawn from the 'lower' >ouse o! 0arliament" the >ouse o! Commons. o !arliament is the ape, of the system o! government and has supreme law:ma&ing power unchecked b* a constitutional court. o (he ministers in the government are e!!ectivel* held in chec& by systems of 'accountability' which a&&l* not onl* during elections but in between them as well.

(his sim&le descri&tion has" inevitabl*" been challenged on the grounds that it describes an ideal that has never e,isted rather than the more fluid and untidy reality of government in $#st centur* 'ritain. We will now consider some as&ects o! how the constitution wor s in &ractice and com&are them to the ideal.

#. /elationshi& between government and 0arliament In theor*" the government is held in chec& by !arliament" in &articular" the >ouse o! Commons. (here are various as&ects b* which the degree of control of government by !arliament and o! !arliament by government can be measured. :ne as&ect is the e,tent to which cts of !arliament can be passed without the support of the government. 0arliamentar* &rocedures provide limited opportunities for 'bac&bench' 4i.e. non-ministers5 M0s and members of the 8ouse of 9ords to introduce !rivate 5embers' Bills on to&ics o! their own choosing. In theor*" this should be a great o&&ortunit* !or law ma ing to be carried out in less !ashionable areas

o! law with greater consensus between &oliticians o! all &arties. 3onetheless" the hard realit* is that very few !rivate 5embers' Bills actuall* become statutes. In the *;;0:"; &arliamentar* session" !or e,am&le" seven !rivate 5embers' Bills became statutes" compared to a total of 6" cts of !arliament.

0rivate Members? 'ills details Da* o! the wee are 0rivate Members' 'ills considered b* 0arliament9 $riday <ays are allocated in a parliamentary session to 0rivate Members' 'ills9 "3 7o. !rivate 5embers' Bills are selected in the ballot9 *; %ub-ect matter o! Cher*l =illian's 'ill9 utism " #ay o! opponent o! a !rivate 5ember's Bill '&ill' it9 o An individual 5! can 'tal& it out'" using u& all the time available to prevent a vote being ta&en. 5ethod of preventing a 0rivate Member's 'ill being '&illed'9

vote on a 'closure' motion will be successful if ";; 5!s support it. (he way used by <avid 5undell ma e his decision on what he should include in his 0rivate Member's 'ill9 o o 8e as&ed his constituents for their views and identi!ied a concern about acce&tance o! %cottish ban&notes in /ngland. #hich government departments did he consult and what was their res&onse? o (he Treasury and %cottish (ffice said that it was an im&ortant issue but they did not support his proposals Statisticall*" what proportion of !rivate 5embers' Bills become law? o (n average4 three or four out of 0;.

Do *ou thin that the system of !rivate 5embers' Bills should be improved and" i! so" how? o Students will have their own views" but a e* im&rovement many 5!s would li&e would be greater parliamentary debating time. o Inevitably" this would mean that there would be less time for government Bills and debates.

=ovt chec ed b* 0arliament- select committee Another method b* which government de&artments and ministers can be held in chec b* 0arliament is the use of departmental select committees. Select committees are made up of bac&bench 5!s and are headed by a chair who is elected by a secret ballot o! the >ouse o! Commons. (he im&ortance o! the secret ballot lies in the !act that it prevents the government from using government whips to influence more M0s to choose chairs who are more malleable.

#hat are the factors that influence the topics which select committees investigate= (hese include9 o the 'news agenda' 4i.e. to&ics being discussed in newspapers and on television5" o the sub-ect matter of legislation be!ore 0arliament and o other to&ics which the members consider im&ortant. #hat reforms have been introduced to deal with the problem of 5!s not attending their select committees= utomatic removal of any member who fails to attend >; per cent of all meetings o! the committee.

8ow valid do you thin& <unleavy and )ilson's criticisms of the methods of information gathering by select committees are= (he 'uestioning of witnesses" including ministers" face to face can sometimes draw out detailed res&onses which genuinely inform public debate. >owever" such 'uestioning can be superficial and time consuming >owever" their suggestions of enabling the committees to access material from the 7ational udit (ffice are attractive.

$. 8ac o! constraint b* a constitutional court Although the United +ingdom now has a Su&reme Court" it is inaccurate to assume that it has a similar function to the U% %upreme Court which has an overt role as a guardian o! the US constitution. 3onetheless" the %upreme Court 4and its &redecessor" the >ouse o! 8ords5 has made a number o! im&ortant decisions that have caused considerable frustration to government ministers and" arguabl*" imposed constraints on the will of !arliament. (he Court of ?ustice of the /uropean Union has enforced EU law in the United +ingdom and the /uropean Court of 8uman +ights ./Ct8+2 has made a number o! ver* controversial decisions concerning the civil liberties of suspected terrorists.

(he decision in 8irst v United Kingdom 4$@@%5 b* the 1Ct>/ that s.< o! the /e&resentation o! the 0eo&le Act #6.<" which imposes a complete ban on voting by prisoners" breached the /uropean Convention on 8uman +ights ./C8+2 has caused &articular controvers* among M0s and government ministers.

<. Delegated legislation Delegated legislation" usually in the form of rules4 regulations and orders 4collectivel* described as 'statutory instruments'5" ma es u& an increasingly large proportion of UK law. Statutor* Instruments' section indicates that 34"33 statutory instruments were created in *;"". (his com&ares with onl* *@ !ublic )eneral cts in *;"". lthough a large proportion o! statutor* instruments concern temporary road traffic closures o! minimal &ublic interest to those not stuc in resulting tra!!ic 2ams" but a significant number deal with im&ortant detailed areas o! law such as welfare benefits4 environmental regulation4 etc. <elegated legislation does not pass through the parliamentary stages undergone b* Acts o! 0arliament.

Instead" most statutory instruments are created by ministers 4and usuall* dra!ted b* their civil servants5 who have been given this law:ma&ing power by cts of !arliament. !arliamentary scrutiny o! delegated legislation is" as a result" fairly minimal. %ome statutory instruments must be approved b* both >ouses under the affirmative &rocedure and others ma* be annulled by a resolution o! either >ouse under the negative procedure" but two: thirds are not e,amined by 5!s or 9ords at all. We will e,amine U+ delegated legislation in more detail in Cha&ter 6.

A. 0rime ministerial government instead o! cabinet government? (he !ocus o! media discussion of politics in the United +ingdom tends to be on personalities. (he greatest attention is often on the !rime 5inister and his or her decisions about how the nation should be governed. /ecent &rime ministers" including 5argaret Thatcher and Tony Blair were such strong personalities that their personal political power tended to overshadow that o! their cabinet colleagues. 3onetheless" both of them were constrained in important ways by the need to retain support from the ministers in their cabinets.

<avid Cameron4 as !rime 5inister o! the ConservativeB8iberal Democrat coalition government !ormed in $@#@" has had to wor& with cabinet colleagues who have significantly different politics from him and has had to ado&t a more consensual a&&roach" wor ing closel* with the 8iberal Democrat <eputy !rime 5inister4 7ic& Clegg. It remains to be seen whether he will continue to be able to maintain a sufficient semblance of cabinet unit* as the ne,t )eneral /lection in *;"@ draws nearer.

%. Membershi& o! the 1uro&ean Union Since the United +ingdom 2oined the 1uro&ean 1conomic Communit* 4the &redecessor o! the 1uro&ean Union5 in #6.<" there has been a series of treaties which have contained measures integrating decision ma&ing and legislation into /uropean law. We will discuss 1U law and its im&act on U+ constitutional law in Cha&ters ## and #$" but it is worth noting at this stage that the introduction of ma-ority voting by member states in some areas of policy" rather than a re'uirement of unanimity " is a &articular challenge to the #estminster model.

+eforming the #estminster model Des&ite the &roblems with the Westminster model" which we have outlined above" man* M0s" ministers and 8ords continue to be intellectuall* and even emotionall* attached to it. A number o! ste&s have been ta en to improve the effectiveness of law ma&ing and debate in and around !arliament. 5inisters are increasingly e,pected to be accountable for their decisions.

3ote the !ollowing innovations. o <ebates on topics selected by bac&bench 5!s9 Debates ma* now be heard in Westminster >all" a building ad2oining the >ouses o! 0arliament" as well as in 0arliament itsel!. (he Bac&bench Business Committee4 which was created in *;";" has the &ower to allocate a limited amount of parliamentary time for debates on topics selected by bac&bench 5!s. Such debates are usuall* on to&ical issues and should reflect a reasonable amount of interest from 5!s.

o Dra!t 'ills9 In recent *ears 2udges and other commentators have criticised the 'uality of the drafting of controversial cts o! 0arliament. In order to identi!* &roblems with legislation at an early stage" the government will now publish some draft Bills to allow more time for comments and improvements. (he draft Bills will be e,amined by select committees from either the 8ouse of Commons or 8ouse of 9ords. See www.&arliament.u BaboutBhowBla wsBdra!tB

<irect democracy Under&inning the idea of direct democracy is the belie! that law ma&ing will have greater acceptability from the voters i! the* have a direct sa* in what laws will be made and their content. (his is clearl* a signi!icant challenge to the #estminster model which rests on the assumption that law is best made by representatives of the people" rather than b* the people themselves. (here are clearly difficulties with this a&&roach9 is it realistic to e,pect most voters to engage with the comple,ity of many legislative issues= #ill populist campaign groups distort the debate and drown out o&&osing arguments? Several methods o! direct democrac* have been used in the United +ingdom.

#. /e!erendums (he ideal !orm o! re!erendum is a straightforward 'uestion to which there are two &ossible answers - 'yes' or 'no'. 7ot all referendum 'uestions are as succinct . Consider the !ollowing e,am&les9 o 'Do *ou thin the United +ingdom should sta* in the 1uro&ean Communit*?' (he answer in #6.% was 'yes'. o 'I agreeBdo not agree that there should be a Scottish 0arliament' and 'I agreeBdo not agree that the Scottish 0arliament should have ta,-var*ing &owers' (he answer !rom Scottish voters in #66. was agreement to both propositions.

More recentl*" the res&onse o! voters to re!erendum )uestions has o!ten been negative. 7ote the decisive re-ection o! the !ollowing )uestion in $@##9 o 'At &resent" the U+ uses the C!irst &ast the &ostC s*stem to elect M0s to the >ouse o! Commons. o Should the Calternative voteC s*stem be used instead?'

Advantages9 o re!erendums enhance the democratic &rocess o re!erendums can be a 'wea&on o! entrenchment' o re!erendums can 'settle' an issue o re!erendums can be a '&rotective device' o re!erendums enhance citizen engagement o re!erendums &romote voter education o voters are able to ma e reasoned 2udgements o re!erendums are &o&ular with voters o re!erendums com&lement re&resentative democrac*. Students should give their own evaluation o! the strongest argument.

Disadvantages9 o re!erendums are a tactical device o re!erendums are dominated b* elite grou& o re!erendums can have a damaging e!!ect on minorit* grou&s o re!erendums are a conservative device o re!erendums do not 'settle' an issue o re!erendums !ail to deal with com&le, issues o re!erendums tend not to be about the issue in )uestion o voters show little desire to &artici&ate in re!erendums o re!erendums are costl* o re!erendums undermine re&resentative democrac*. Students should give their own evaluation o! the strongest argument.

$. :ther methods o! direct democrac* A number o! other methods o! engaging more directl* with voters outside elections have been used in the United +ingdom. #9 1-&etitions 3ote how there is a re'uirement that at least one 5! is prepared to support a debate on the to&ic o! an e-&etition. $9 Social media !arliament has started to engage with social media such as Twitter4 $aceboo&" etc.

%ummary Constitution Constitutions can be classi!ied in di!!erent wa*s" including federal or unitary4 republican or monarchical4 rigid or fle,ible. In contrast to most democratic countries" the United Kingdom is often described as having an unwritten constitution. (here is no single document labelled the 'U+ Constitution'" but a better description is that it is uncodified since most o! the rules and conventions are written down in various Acts o! 0arliament and descri&tions o! conventions.

Westminster model (he '#estminster model' of government is still considered by many parliamentarians 4though not b* man* legal commentators5 to re&resent the form of government of the United Kingdom. It !eatures government drawn !rom the ma-ority party.ies2 in the 8ouse of Commons. !arliament is the unchallenged ape, o! the s*stem o! government" without an* limitations im&osed b* a constitutional court" and ministers are held accountable to 0arliament. (he relationship between !arliament and the government can be viewed in various wa*s" including the e,tent to which individual M0s and 8ords can create law through 0rivate Members' 'ills. %elect committees have ac'uired greater powers to 'uestion and challenge government ministers but their effectiveness is still limited.

(he relationship between the courts and government has been strained in recent *ears over various issues" including the e!!ect o! decisions o! the Court of ?ustice of the /uropean Union and the /Ct8+. (he UK %upreme Court does not" however" fulfil the functions of a constitutional court. Control by !arliament over delegated legislation 4statutor* instruments5 is ver* limited" although the a!!irmative and negative &rocedures are sometimes used. (he ability of the !rime 5inister to impose his or her will on the government varies de&ending on the &ersonalities involved and" in the case o! the current 0rime Minister" <avid Cameron4 in the light of the constraints o! coalition government.

/e!orm o! Westminister model Incremental reforms to the Westminster model include providing a mechanism for bac&bench 5!s to instigate debates. (he use of draft Bills enables earlier scrutin* b* M0s and other interested &arties. <irect democracy &oses challenges to the #estminster model. +eferendums" in &articular" detract !rom the re&resentative a&&roach to law ma ing and ma* lead to bad policy ma&ing when di!!icult decisions are considered in isolation. (ther methods of direct democracy include e-&etitions and social media.