UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

POLITICAL SCIENCE PROJECT

TOPIC - THE BRITISH POLITICAL TRADITION:

 SOURCES OF THE BRITISH CONSTITUTION

 SALIENT FEATURES OF THE CONSTITUTION
 CONVENTION OF THE CONSTITUTION

SUBMITTED TO – DR. NIRMAL SINGH

SUBMITTED BY – GAVNEET SINGH

ROLL NO. – 34/19

SECTION – A

B.A.L.L.B (HONS.)

SEMESTER - 4
THE BRITISH POLITICAL TRADITION:
• INTRODUCTION:
This core issues addressed in this article concern the long-term effect of the British Political
Tradition - a hierarchical and centralising approach to UK governance - in acting as a
fundamental constraint on any notion of democratic devolution in England. As a
consequence, attempts to devolve power in any meaningful sense, be it for example the New
Labour Government in the late 1990s, or in the aftermath of the 2014 Scottish referendum,
reveal a set of contradictions and constraints acting against democratic subsidiarity. The
article sets out the way in which movesto devolve power in England are shaped by an in-built
pathology – that of being driven by a top-down set of imperatives concerning the shoring up
of the centre. The longer-term viability of any new democratic settlement emerging out of the
current reform process is questioned, as it has eschewed a reflexive and deliberative approach
to identifying what the needs or demands of citizens might be.
One of the peculiarities of British history is that both Whiggish and Marxist accounts provide
complementary approaches to explaining the way in which social, economic and political
conflicts are resolved in the UK. Both emphasise a process of elite co-option. Both Marxists
and Whigs see Britain avoiding upheaval by either accommodating [Whig] or co-opting
[Marxists] new social forces as a mechanism for preserving the system as a whole. For Judge
(1993), much of the political process has been framed by Parliament and Parliamentary
conceptions of politics. Consequently, there are many examples of various political forces,
but maybe most obviously the Labour Party, curtailing their more radical tendencies and
accepting the rules of the Westminster game, leading to continuity overtime within the
political system (Marquand 1981; Evans 2003; 2008)

THE DEVOLUTION:
In the case of devolution, two particular aspects of the WM create a tension; Parliamentary
Sovereignty and the ‘unwritten’ constitution. Parliamentary sovereignty is the cornerstone of
the WM as it locates all electoral authority in the House of Commons and more specifically
the executive (see Blick 2011; Smith 1999; Richards and Smith; 2006). Meaningful
devolution is impossible within the context of this notion of sovereignty as all devolved
powers are determined by, and dependent on, the executive. The pathology then to emerge is
that sovereignty is not real, in terms of reflecting an empirical reality, but a myth that
legitimises elite behaviour (see Merelman 2003). As Walker (2003) argues: ‘states are no
longer the sole locus of constitutional authority’. Sovereignty is about a combination of
power and authority. The Scottish Parliament and the Scottish National Party (SNP) have
been able to create a separate source of authority (or a legitimising myth in the idea of a
distinct Scottish nation), which is able to challenge the dominance of the BPT. England has
an absence of a similar competing narrative providing an alternative to the BPT (Kenny
2014). As we see below, English Votes for English Laws [EVEL] is the epitome of a WM-
style devolution; power is located in English MPs rather than the English citizen. This issue is
exacerbated by Britain’s unwritten constitution. As Gladstone recognised the constitution:
‘…presumes more boldly than any other the good sense and good faith of those who work it’
(cf. Hennessy and Blick 2011: 1). It assumes Britain is run by ‘good chaps’ who can be
trusted to abide by the informal rules of the game (Hennessey 1989; Moran 2003). In this
context, the unwritten constitution does more to enable rather than constrain the Westminster
class. The point is illustrated by David Cameron’s claim in autumn 2015 to invoke a
previously unrecognised precedent that the House of Lords should reflect the make-up of the
House of Commons (Russell 2013).
A consequence of an unwritten constitution is that its flexibility allows governments (or
prime ministers with the support of the cabinet secretary) to determine the nature, rules, and
processes underpinning reform, including in the context of this article, devolution (Hennessy
1995). Prior to the 2014 Scottish Independence Referendum, Cameron and the other main
Westminster party leaders offered Scotland a new tranche of powers without consultation,
parliamentary process or mandate. Devolution in both Scotland and England has been shaped
by an ad hoc process, made possible by the absence of any explicit constitutional procedures.

Constitutional Reform as Elite Compromise :

The mode of governance emerging within the context of English devolution can be traced
back to the system of Imperial government developed by Britain. Unlike for example France,
Britain did not have a single model of how colonies should be governed, but managed the
empire (like the Catholic Church) through adapting to local custom and incorporating local
elites. In that way, Britain maintained power without costly and prolonged conflicts. This ad
hoc model of co-option and adaptation is similar to the one used overtime in Scotland
including the current process of devolution. Devolution in Scotland reflects the way in which
the British political elite has continually compromised to preserve the Union.
The consequence of this approach is that the localised forms of devolution offered are shaped
by an overarching commitment to maintain the system rather than develop democratic forms
of governance. As Blunkett and Richards (2011: 187) observe: The friction between the idea
of decentralising power and the centralising tendency of the BPT led New Labour to devolve
mechanistically rather than in 8 terms of pluralistic engagement, except possibly with regard
to the constitutional changes for Scotland, Wales and Northern Ireland...Indeed, where
devolution did take place, for example in commissioning health decisions to primary care
trusts and foundation trusts, robust institutional channels and mechanisms affording people
the opportunity to have a voice in the process were not properly embedded. The net result
was that individuals and key stakeholders turned back to the centre, which would then make
an announcement and allocate resources over which they formally had little control. This left
the impression that some decision-making had in places been decentralised, but there was
little or no clarity as to where the decision was actually been taken.

Sources of British Constitution:

Unlike most modern states, Britain does not have a codified constitution but an unwritten one
formed of Acts of Parliament, court judgments and conventions. Professor Robert Blackburn
explains this system, including Magna Carta’s place within it, and asks whether the UK
should now have a written constitution.
For most people, especially abroad, the United Kingdom does not have a constitution at all in
the sense most commonly used around the world – a document of fundamental importance
setting out the structure of government and its relationship with its citizens. All modern
states, saving only the UK, New Zealand and Israel, have adopted a documentary constitution
of this kind, the first and most complete model being that of the United States of America in
1788. However, in Britain we certainly say that we have a constitution, but it is one that
exists in an abstract sense, comprising a host of diverse laws, practices and conventions that
have evolved over a long period of time. The key landmark is the Bill of Rights (1689),
which established the supremacy of Parliament over the Crown following the forcible
replacement of King James II (r. 1685–88) by William III (r. 1689–1702) and Mary (r. 1689–
94) in the Glorious Revolution (1688).
From a comparative perspective, we have what is known as an ‘unwritten constitution’,
although some prefer to describe it as ‘uncodified’ on the basis that many of our laws of a
constitutional nature are in fact written down in Acts of Parliament or law reports of court
judgments. This aspect of the British constitution, its unwritten nature, is its most
distinguishing characteristic.
Another characteristic of the unwritten constitution is the special significance of political
customs known as ‘conventions’, which oil the wheels of the relationship between the ancient
institutions of state. These are unwritten rules of constitutional practice, vital to our politics,
the workings of government, but not committed into law or any written form at all. The very
existence of the office of Prime Minister, our head of government, is purely conventional. So
is the rule upon which he or she is appointed, being whoever commands the confidence of the
House of Commons (the majority party leader, or head of a coalition of parties).
The Monarchy is one of the three components of Parliament (shorthand for the Queen-in-
Parliament) along with Commons and Lords. In legal theory, the Queen has absolute and
judicially unchallengeable power to refuse her assent to a Bill passed by the two Houses of
Parliament. However, convention dictates the precise opposite and in practice she
automatically gives her assent to any government Bill that has been duly passed and agreed
by Parliament. Another important convention is that government ministers must have a seat
in Parliament (and, in the case of the Prime Minister and Chancellor of the Exchequer,
specifically in the House of Commons) in order to hold office. This is a vital aspect of what is
known as the ‘Westminster system of parliamentary government’, providing a direct form of
executive responsibility and accountability to the legislature.
There is irony in the fact that the United Kingdom today does not have a written constitution,
yet historically it has had a rich heritage of pioneering constitutional charters and
documentation. First and foremost is Magna Carta (1215), the ‘Great Charter of the Liberties
of England’. This established the principle that our rulers, at that time the king, could not do
whatever they liked, but were subject to the law as agreed with the barons they governed.
This simple concept laid the foundations for constitutional government and freedom under
the law. Insofar as Magna Carta was ‘the first great public act of the nation’, it also
established the direction of travel for our political system towards representative institutions
and, much later, democracy itself.
In 1258, the Provisions of Oxford, sometimes referred to as the first ever written constitution,
provided for a Council of twenty-four members through whom the King should govern, to be
supervised by a Parliament. This was convened for the first time in 1264 by Simon de
Montfort (d. 1265). During the constitutional conflicts of the 17th century, the Petition of
Right (1628) relied on Magna Carta for its legal basis, setting out rights and liberties of the
subject including freedom from arbitrary arrest and punishment. The Bill of Rights (1689)
then settled the primacy of Parliament over the monarch’s prerogatives, providing for the
regular meeting of Parliament, free elections to the Commons, free speech in parliamentary
debates, and some basic human rights, most famously freedom from ‘cruel or unusual
punishment’. This was shortly followed by the Act of Settlement (1701) which controlled
succession to the Crown, and established the vital principle of judicial independence.
Over the past century there have been a number of Acts of Parliament on major constitutional
subjects that, taken together, could be viewed as creating a tier of constitutional legislation,
albeit patchy in their range and with no special status or priority in law. They include:
• o The Parliament Acts (1911–49) that regulate the respective powers of the two
Houses of Parliament.
• o The Representation of the People Acts (1918) (as amended) providing for universal
voting and other matters of political representation.
• o The European Communities Act (1972) making the UK a legal partner in the
European Union.
• o The Scottish, Welsh and Northern Ireland devolution Acts of 1998 (as amended)
creating an executive and legislature for each of those three nations in the UK.
• o The Human Rights Act (1998) establishing a bill of rights and freedoms actionable
by individuals through the courts.

Salient Features Of British Constitution:

• Parliamentary sovereignty:
Parliamentary sovereignty is often seen as a central element in the UK constitution, although
its extent is contested.[12] It means that an Act of Parliament is the highest form of law, but
also that "Parliament cannot bind itself."[13] Historically, Parliament became sovereign
through a series of power struggles between the monarch, the church, the courts, and ordinary
people. The Magna Carta 1215, which came from the conflict leading to the First Barons'
War, granted the right of Parliament to exist for "common counsel" before any tax,[14]
against the supposedly "divine right of kings" to rule. Common land was also guaranteed to
people to farm, graze, hunt or fish, though aristocrats continued to dominate politics. In the
Act of Supremacy 1534, King Henry VIII asserted his divine right over the Catholic Church
in Rome, declaring himself the supreme leader of the Church of England. Then in the Earl of
Oxford's case in 1615,[15] the Lord Chancellor (both the King's representative and head of
the judiciary) asserted the supremacy of the Court of Chancery over the common law courts,
effectively nullifying Sir Edward Coke's assertion that judges could declare statutes void if
they went "against common right and reason".[16] Finally, after the Glorious Revolution of
1688, the Bill of Rights 1689 placed Parliament's power over the monarch (and therefore over
the church and courts). Parliament became the "sovereign", and supreme. Power struggles
within Parliament continued between the aristocracy and common people. Outside
Parliament, people from the Chartists, to the trade unions fought for the vote in the House of
Commons, and finally in the Parliament Act 1911 and Parliament Act 1949 for the Commons
to prevail in any conflict over the unelected House of Lords: after 1949, the Lords could only
delay legislation by one year,[17] and not delay any budgetary measure over a month
However, in obiter dicta Lord Hope did argue that Parliamentary sovereignty "is no longer, if
it ever was, absolute", and that the "rule of law enforced by the courts is the ultimate
controlling factor on which our constitution is based", and cannot be used to defend
unconstitutional Acts (as determined by the courts). There remains no settled meaning of
"Parliamentary sovereignty", except that it crystallises around the principle of representative
democracy, and that its legal force depends on its political legitimacy.

• Rule of law:
The rule of law has been regarded as a fundamental principle of modern legal systems,
including the UK. It has been called "as important in a free society as the democratic
franchise", and even "the ultimate controlling factor on which our constitution is based", but
like parliamentary sovereignty, its meaning and extent is disputed. The most widely accepted
meanings speak of several factors: Lord Bingham of Cornhill, formerly the highest judge in
England and Wales, suggested the rule of law ought to mean that law is clear and predictable,
not subject to broad or unreasonable discretion, applies equally to all people, with speedy and
fair procedures for enforcement, protects fundamental human rights, and works according to
international law.] Other definitions seek to exclude human rights and international law as
relevant, but largely stem from visions of pre-democratic scholars such as Albert Venn
Dicey.[ The rule of law was explicitly recognised as a "constitutional principle" in section 1
of the Constitutional Reform Act 2005, which limited the judicial role of the Lord Chancellor
and recast the judicial appointments system to entrench independence, diversity and merit. As
statute gives no further definition, the practical meaning of the "rule of law" develops through
case law.

• Democracy:
The principle of a "democratic society", with a functioning representative and deliberative
democracy, that upholds human rights, legitimises the fact of Parliamentary sovereignty, and
it is widely considered that "democracy lies at the heart of the concept of the rule of law".
The opposite of arbitrary power exercised by one person is "administration is in the hands of
the many and not of the few'". According to the preamble to the European Convention on
Human Rights, as drafted by British lawyers following World War II, fundamental human
rights and freedoms are themselves "best maintained... by "an effective political democracy".
Similarly, this "characteristic principle of democracy" is enshrined by the First Protocol,
article 3, which requires the "right to free elections" to "ensure the free expression of the
opinion of the people in the choice of the legislature". While there are many conceptions of
democracy, such as "direct", "representative" or "deliberative", the dominant view in modern
political theory is that democracy requires an active citizenry, not only in electing
representatives, but in taking part in political life. Its essence lies in not simply majority
decision-making, nor referendums that can easily be used as a tool of manipulation, "but in
the making of politically responsible decisions" and in "large-scale social changes
maximising the freedom" of humankind. The legitimacy of law in a democratic society
depends upon a constant process of deliberative discussion and public
debate, rather than imposition of decisions.It is also generally agreed that basic standards in
political, social and economic rights are necessary to ensure everyone can play a meaningful
role in political life. For this reason, the rights to free voting in fair elections and "general
welfare in a democratic society" have developed hand-in-hand with all human rights, and
form a fundamental cornerstone of international law.

 Internationalism:
Like other democratic countries, the principles of international law are a basic component of
the UK constitution, both as a primary tool of interpretation of domestic law, and through the
UK's consistent support and membership of major international organisations. As far back as
the Magna Carta 1215, English law recognised the right to free movement of people for
international trade. By 1608, Sir Edward Coke wrote confidently that international
commercial law, or the lex mercatoria, is part of the laws of the realm, while the
constitutional crises of the 17th century centred upon Parliament halting the King's
attempting to tax international trade without its consent.Similarly in the 18th century, Lord
Holt CJ viewed international law as a general tool for interpretation of the common law,
while Lord Mansfield in particular did more than any other to affirm that the international lex
mercatoria "is not the law of a particular country but the law of all nations", and "the law of
merchants and the law of the land is the same". In 1774, in Somerset v Stewart, one of the
most important cases in legal history, Lord Mansfield held that slavery was lawful "in no
country" and therefore in common law. In modern case law it has been consistently accepted
that it "is a principle of legal policy that [UK] law should conform to public international
law." The House of Lords stressed that "there is a strong presumption in favour of
interpreting English law (whether common law or statute) in a way which does not place the
United Kingdom in breach of an international obligation."[ For example, in Hounga v Allen
the Supreme Court held that a young lady who had been illegally trafficked to the UK had a
right to bring a race discrimination claim against her employers, even though she had herself
been in violation of the Immigration Act 1971.] In doing so, the court unanimously drew
upon international treaties signed by the UK, known as the Palermo Protocols, as well as the
European Convention on Human Rights, in interpreting the scope of the common law
doctrine of illegality, and held it was no bar for the claimant to assert her legal rights. It has
been further debated whether the UK should adopt a theory of that sees international law as
part of UK without any further act (a "monist" theory), or whether it should still be required
for international law principles to be translated into domestic law (a "dualist"
theory). The current position in European Union law is that while international law binds the
EU, it cannot undermine fundamental principles of constitutional law.

• INSTITUTION:

While principles may the basis of the UK constitution, the institutions of the state perform its
functions in practice. First, Parliament is the sovereign entity. Its two chambers legislate. In
the House of Commons each Member of Parliament is elected by a simple majority in a
democratic vote, although outcomes do not always accurately match people's preferences
overall. Historically, most elections occurred each four years, but this was fixed at five years
in 2011. Election spending is tightly controlled, foreign interference is prohibited, and
donations and lobbying are limited in whatever form. The House of Lords reviews and votes
upon legislative proposals by the Commons. It can delay legislation by one year, and cannot
delay at all if the proposed Act concerns money. Most Lords are appointed by the Prime
Minister, through the Queen, on the advice of a Commission which, by convention, offers
some balance between political parties. Ninety-two hereditary peers remain. To become law,
each Act of Parliament must be read by both houses three times, and given royal assent by the
monarch. The Sovereign does not veto legislation, by convention, since 1708. Second, the
judiciary interprets the law. It can not strike down an Act of Parliament, but the judiciary
ensures that any law which may violate fundamental rights has to be clearly expressed, to
force politicians to openly confront what they are doing and "accept the political cost". Under
the Constitutional Reform Act 2005, the judiciary is appointed by the Judicial Appointments
Commission with cross-party and judicial recommendations, to protect judicial
independence. Third, the executive branch of government is led by the Prime Minister who
must be able to command a majority in the House of Commons. The Cabinet of Ministers is
appointed by the Prime Minister to lead the main departments of state, such as the Treasury,
the Foreign Office, the Department of Health and the Department of Education. Officially the
"head of state" is the monarch, but all prerogative power is exercised by the Prime Minister,
subject to judicial review. Fourth, as the UK matured as a modern democracy, an extensive
system of civil servants, and public service institutions developed to deliver UK residents
economic, social and legal rights. All public bodies, and private bodies that perform public
functions, are bound by the rule of law.

• Parliament:
In the UK constitution, Parliament sits at the apex of power. It emerged through a series of
revolutions as the dominant body, over the church, courts, and the monarch, and within
Parliament the House of Commons emerged as the dominant chamber, over the House of
Lords that traditionally represented the aristocracy. The central justification for Parliamentary
sovereignty is usually thought to be its democratic nature, although it was only upon the
Representation of the People (Equal Franchise) Act 1928 that Parliament could be said to
have finally become "democratic" in any modern sense (as property qualifications to vote
were abolished for everyone over 21), and not until after WW2 that decolonisation, university
constituencies and lowering of the voting age took place. Parliament's main functions are to
legislate, to allocate money for public spending, and to scrutinise the government. In practice
many MPs are involved in Parliamentary committees which investigate spending, policies,
laws and their impact, and often report to recommend reform. For instance, the
Modernisation Committee of the House of Commons in 2002 recommended publishing draft
bills before they became law, and was later found to have been highly successful.] There are
650 Members of Parliament (MPs) in the House of Commons, currently elected in five-year
terms unless two-thirds vote for an early election, and 790 peers in the House of Lords. For a
proposed Bill to become an Act, and law, it must be read three times in each chamber, and
given royal assent by the monarch.
 REFERENCES

 https://en.wikipedia.org/wiki/constitutionofunitedkingdom

 https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution

 https://thelawstudy.blogspot.com/2014/06/salient-features-of-the-british-
constitution.html