Exploring the Constitution
How is the UK situation different?
The UK situation is different:-
There is no codified constitution, in the sense that one or a very few documents contain the key elements of the constitution, though it is possible to point to large parts of it that are written down.
The constitution can be changed by a simple majority of MPs voting in Parliament – that is, a majority of MPs present for that vote and not even a majority of all MPs. Some constitutional proposals have been submitted to a referendum but others have not and this has largely depended on whether the Government wants to hold a referendum.
Britain does not have a Constitutional Court. The Supreme Court, created in 2009 to replace the Law Lords as the highest court in the land, may come to develop more authority over time but it has not been set up to rule on constitutional issues.
Most countries created their constitutions after a political upheaval such as the French and American Revolutions, or the emergence of countries in Eastern and Southern Europe from authoritarian regimes, or after achieving independence from colonial rule in other parts of the world. England went through its major political upheaval in the Civil War of the 1640s, before ideas of constitutions were well developed, and so relative political stability since then has meant that the constitution has developed gradually and piecemeal.
What does Britain's 'constitution' consist of?
Britain’s constitution has never been codified and consists of:-
Statute Law. The laws passed by Parliament, for example, the Devolution legislation and the Human Rights Act.
Common Law. The legal principles developed built up over time by the judges as they considered cases, for example, the Wednesbury principle that government bodies should come to decisions that are reasonable in terms of basic logic and moral standards.
Constitutional conventions. Rules generally accepted by people in the key institutions of government as to how the constitution works, for example, that the Queen would not refuse to sign legislation passed by Parliament.
Authoritative sources. A few key works may influence decisions on what the constitution is, for example, Erskine May which sets out the procedures of the House of Commons.
We have two important traditions
The western constitutional tradition, in the 18th century, developed two ideas which remain important:-
The Rule of Law
This principle is not always clearly defined but is generally held to include:-
- That no one is above the law. The actions of all public officials are governed by the law and must be taken in accordance with the law and not in an arbitrary way. Their decisions must not be taken out of self-interest or because of corruption.
- Laws should be clear and not constantly changing. They should apply to all citizens equally. People should be tried on the basis of the law as it stood when the alleged offence occurred and not on the basis of new laws that are acting retrospectively.
- Everyone should have access to the courts and legal processes should be understandable, fair and operate reasonably quickly
- There is a narrower interpretation of the rule of law which holds that as long as laws are followed then the rule of law has been applied. A broader interpretation is that laws need to be just and protect individual rights and democracy
The Separation of Powers
In reaction to the absolute rule of monarchs, political theorists, in the 18th century, argued that the three main branches of the State, the Executive or Government, Parliament and the Judiciary should have independence from each other and that there should be a set of checks and balances between them in the way that their powers operate, so that none is too dominant. The American Constitution is based on these principles so that the President is elected independently of Congress, Congress passes laws independently of the president and the Supreme Court can overrule these laws.