The British Constitution

A peculiar constitution?

• Not ‘unwritten’ but uncodified…

• ‘Peculiar’ but praised by visitors such

as Voltaire

• Few other examples in the world…

 What is a constitution?
• Usually a single and authoritative (definitive) document -
enshrining the most basic principles of governance

• Legal frame-work for governance .

• Defines functions / powers / competencies of a state and its

institutions / agencies

• Lists the rights and duties of members (subjects / citizens)

• And their relations to the Supreme authority of the State

• Often a 'founding' document of a state

Six key sources of the
British Constitution
 1. Statutes:
• Acts of Parliament over-ride all other constitutional sources
(Blackstone)

• Even previous Acts of Parliament

• Except since 1973 some EU law takes precedence

Some examples: Representation of the People acts; devolution

legislation 1997 and 1998

Bill of Rights 1689

Freedom of Information Act (2000)

Parliament Acts 1911 and 1949

 2. Royal prerogatives
• Derived directly from the Crown not Parliament

• Now exercised more by ministers of the crown than the Crown per se on
''royal authority''

• Executed formally as Orders-in Council - referring to the Privy Council -

advisers to the Monarch

• Via Royal proclamations or Writs issued under the Great Seal -ancient
symbol of monarchical power that now resides with the elected government

• Used to symbolise the monarch's approval of important state documents

• Problem here is lack of parliamentary approval of important powers

• And over-use….
 3. The Common Law

• Customs / precedents established

by judicial decisions

• Examples: freedom of speech,

habeas corpus, freedom of
assembly / peaceful picketing etc
4. Authoritative commentaries

• Erskine May, A Practical Treatise on the

Law, Privileges, Proceedings and
Usage of Parliament (1844)

• A.V. Dicey, An Introduction to the study

of the Law and the Constitution (1885)

• Blackstone's Commentaries on the

Laws of England (1758)
 5. Conventions
• Established customs / practices for the conduct of governance
and politics

• Binding as to usage but lacking the force of law

• More significant where applied to conduct of executive or Crown

Examples:
1. Impartial speaker of House of Commons

2. The doctrine of ministerial and collective cabinet responsibility

3. PM should be a member of the Commons

 6. EU Law
• EU law has precedence over statute law
where it applies

• ‘Supremacy’ and ‘direct effect’

doctrines

• Major and increasing implications for

British government and statehood
 In addition: Constitutional
Doctrines
(a) Unitary State though this has been challenged by devolution post 1998

(b) Parliamentary sovereignty

(c) Constitutional monarchy

(d) Responsible government: ministers accountable to the

electorate individually and collectively

(e) Representative government: MPs represent electorate not party

or self-interest

Burke's doctrine in his Speech to the Electors at Bristol at the Conclusion of

the Poll (1774) was noted for its defence of the principles of representative
democracy against the notion that elected officials should be delegates or party
hacks
• All of the above have been challenged /
undermined / changed over time

• And by contingent and selective and

politically convenient ‘usage’
 So reform of the ramshackle
constitution?
Complicated due to sheer variety of constitutional sources

1. Growth of ‘intrusive’ EU law

2. ‘Misuse’ of executive power

3. Devolution….and the aftermath of the Scottish referendum

• Suggests a need to ‘rethink’ the British Constitution?

• Notably Vernon Bogdanor in The New British

Constitutiton (2009)
 But….does the British Constitution
still ‘work’?
Virtues:
• Stable democracy

• UK one of oldest continuous democracies

• Durable and mostly peaceful transition over time

• Survived major world events - wars, revolutions elsewhere, massive socio-economic

transformations -depressions, recessions

• Durable government: most governments last the course of 4/5 years

• BUT complacency here?

• The Scottish question needs to be answered

 Drawbacks…1. Rigidity
• Critics claim Constitution not adapted so well to current
and serious challenges

• In spite of claims to ‘flexibility’

• Changing the constitution is cumbersome process -

critics (Bogdanor etc) say written constitution would
facilitate change better

eg: It has taken almost a century to reform the House of

Lords from an aristocratic fiefdom into a chamber that
reflects modern social structure and democratic values…

• And even that reform isn’t finally completed

 2. Undue secrecy

• Official Secrets Act (1989) prevents proper

scrutiny of government

• On spite of the Freedom of Information Act

[2000] which has all sorts of exclusions

• Makes UK one of the most difficult / non-

transparent systems of decision-making one of
the most secretive of any modern democratic
state
 3. Democracy deficits
• Electoral system (FPTP) is unfair to minor parties?

• Freedom of Information Act is severely restricted

• Devolution enhanced territorial power but did not address either the
West Lothian question or the English question

• Nor has it addressed the over-centralisation of government in general

• The power of the executive once described by Lord Hailsham (in 1976
Dimbleby Lecture ) as ''elected dictatorship'' remains formidable

• The House of Commons is increasingly weakened by an over-weaning

executive, select committees notwithstanding

• Role of the monarchy may need to be revisited after the present (quiet)
incumbent passes on in view of )Prince Charles's demands that he wants to
be more active as a monarch than his mother in policy issues
 Reform movement gathered pace in last
two decades of 20th century

• Thatcher's impact: ‘elected dictatorship’?

• Scottish unrest and relations with Ulster

• Charter '88 and the human rights lobby

• Rise of Lib Dems as a ‘third force’ in politics and

demands for voting reform and devolved powers
(subsidiarity)

• Blair’s New Labour ‘project’ was about constitutional

reform
 Blair governments reforms

• Devolution

• Freedom of Information

• Reforms of the management of the security services

• House of Lords reform begun

• Supreme Court and law reform

• Bank of England independence

 But piecemeal changes - we are
still a long way from…..
• ….having a meaningful ‘constitutional conversation’

• About how to meet the multiple challenges identified

above

• Reimagining the British state in a global age

• = urgent task……..even if Scotland doesn’t vote to

leave the UK

• And need to establish clearer governance relations with

EU