Exploring the Constitution
What are the sources of the UK Constitution?
As the UK Constitution has grown slowly it is important to understand not only what these sources are but also the historical background to them:-
The Common Law
After the Norman Conquest, the courts set up by the English monarchs began to create a single body of law to apply across the kingdom which would be superior to the local laws and customs that had existed before.
This common law developed through the decisions of judges in cases to build up a set of legal precedents.
Judges also incorporated Statutes issued by the Monarch which mostly codified existing areas of law. Magna Carta, forced by the aristocracy on King John in 1215, stated limits to the power of the Monarchy and established that subjects could not be imprisoned or punished without having gone through the proper legal system.
Dissatisfaction with the common law courts led those aggrieved to petition the Lord Chancellor and a separate set of judgements here produced the law of equity, which set broader principles that the courts could follow.
Where common law dealt with constitutional areas
Most common law dealt with social and economic relationships but it also dealt with a number of constitutional areas:-
a) The rule of law was established so that everyone should have recourse to the law and no one and no part of government could be above the law. The courts still hold this to be an overarching principle and have recently criticised Government proposals to limit judicial review because it conflicts with this principle.
b) Common law never created a set of rights, such as those that appeared in the American Constitution and the French revolutionary Declaration of the Rights of Man. There was the assumption that people had liberties but these only existed if they were not restricted by law.
c) Government could only do what was allowed by Acts of Parliament. The courts developed a range of tests such as the ultra vires principle, reasonableness, or the need to consider relevant factors and disregard unreasonable factors to judge whether Government organisation were acting within the law.
d) The Royal Prerogative. The courts had defined the powers that the monarch held. This provides limits to these powers but they still remained wide such as to declare war, sign treaties, reorganise the machinery of government, dismiss royal officials and summon and dismiss Parliament. As power passed from the Monarch to an elected Government, the courts held that almost all of these powers were instead held by the Executive, that is the Prime Minister and other Ministers. This means that the powers of the Executive in Britain were especially large, even though in some areas, such as the declaration of war, it has become accepted that Parliament should vote on the decision, as it did over the Iraq war and military intervention in Syria. Very limited powers are still seen as the personal prerogative of the Queen and, particularly, this includes the appointment of the Prime Minister, although, in practice there are precedents that have been followed in taking this decision.
By the Tudor period it was accepted that Parliament had to approve taxes and could issue Acts which became law.
The attempt of Charles I to raise taxes without Parliamentary approval and use the judges that he appointed to enforce this was one of the reasons for the civil war. A
fter the exile of James II, who also tried to rule without consent, Parliament passed the Bill of Rights in 1688, which remains one of the most important Acts of Parliament with constitutional significance.
The Act is not a statement of individual rights but asserts the rights of Parliament as against the Monarchy, for example, that Parliaments should be held regularly and not just when the monarch wanted to call them.
It contains the phrase “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”, which is the basis of the constitutional principle of Parliamentary Sovereignty.
The implications of parliamentary sovereignty are:-
a) That the courts cannot overturn an Act of Parliament by declaring it unconstitutional. They can only interpret the meaning of the wording of an Act when they apply it to a particular case. Even when the Human Rights Act 1998, was passed, the courts could not use it to declare another Act of Parliament unconstitutional but, instead, they can just point out the conflicts between the two Acts.
b) A Parliament cannot pass an Act which will be binding on the next Parliament. The European Communities Act 1972, which gives EU law superiority, could be repealed at any time (and was).
c) MPs cannot be sued for libel for what they say during Parliamentary proceedings. They are also immune from being in contempt of court and so can comment on the merits of cases before the courts, which the media cannot, although, by convention, MPs do not comment on cases while they are proceeding.
d) Although MPs are not immune from criminal prosecution, Parliament is responsible for what MPs do within Parliament and how Parliament works. No one can go to the courts to challenge how decisions are made in Parliament.
Has parliamentary sovereignty been eroded in practice
There has been a debate more recently as to whether Parliamentary Sovereignty has been eroded in practice because:-
– Given the European Communities Act 1972, which makes EU law superior to UK law, Parliament could actually pass legislation that conflicted with EU law. This obviously is impacted by the UK’s decision to leave the European Union
– The Government by and large accepted the judgements of the European Court of Human Rights and amended legislation to take account of this. The Human Rights Act, which incorporates the European Convention of Human Rights, allowed the courts to declare Acts of Parliament incompatible with it. Again, this will be impacted by Brexit.
– Devolution to the Scottish Parliament and the Welsh Assembly has given these bodies the power to legislate in many areas. Although theoretically Westminster could repeal the devolution legislation, the political consequences would be huge.
Statute Law has gradually come to replace many areas of common law but Acts of Parliament have also created parts of the modern Constitution so that, actually, a large part of the Constitution is written down, but not codified into a single document.
Acts with constitutional implications
There is, no principle in UK law to distinguish a Constitutional Act from any other Act of Parliament, but Acts that cover a number of areas can be looked as having constitutional implications. These are:
Legislation on individual rights.
This was greatly extended by the Human Rights Act 1998. The Freedom of Information Act 2000 gave individuals rights to request information from public bodies. The British Nationality Act 1981 is the basis for deciding who is a British citizen.
The composition and structure of Parliament.
The Parliament Acts 1911 and 1949 limit the power of the House of Lords as against the House of Commons. The Life Peerages Act 1958 meant that the Lords would not just consist of hereditary peers but could include other people with particular expertise or experience. The House of Lords Act 1999 removed most hereditary peers.
The electoral process.
The Representation of the People Acts gradually increased the number of people who could vote and determined the boundaries of constituencies and the voting system. The Fixed-term Parliaments Act 2011 removed the power of the Prime Minister to decide when to call an election. The Political Parties, Elections and Referendums Act 2000 regulated political parties and set up an Electoral Commission.
The powers between Westminster and other tiers of government.
The Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 set up Parliaments in these parts of the UK and gave them powers to control a wide range of areas. The Government of Wales Act 2006 and Scotland Act 2012 extended these powers. The European Communities Act 1972 put the UK within EU institutions and established the supremacy of EU law. The Local Government Acts have defined the powers of local councils.
The organisation of the Executive.
There is very little legislation in this area. The Ministers of the Crown Act 1975 set the procedure for government departments to be changed. The Constitutional Reform and Governance Act 2010 gave legal recognition to the civil service, as previously the powers of Government to reorganise it depended on the royal prerogative. It also referred to special advisers.
The succession to the Crown.
The Act of Settlement 1701 requires the monarch to be a Protestant. The Succession to the Crown Act 2013 means that a son will not take precedent in the succession over an older daughter.
– The relationship between Parliament and the Judiciary and between the Judiciary and the Executive
The Bill of Rights 1689 established parliamentary sovereignty. The Constitutional Reform Act 2005 established a Supreme Court and guaranteed judicial independence from the Government.
Constitutional conventions are the rules as to how the political system works which are accepted by the key people within the system. They may have developed gradually or may be created to deal with a particular situation. They do not have the force of law and the courts will not rule against a departure from a convention.
The most important constitutional conventions
The most important constitutional conventions are:-
– The Queen does not refuse to approve a Bill passed by the two Houses of Parliament. The last monarch to do so was Queen Anne in 1707. When George I succeeded Anne he spoke no English and relied on his British advisers and it gradually became accepted that the monarch would not overrule Parliament. Similarly the Queen takes the advice of Government ministers in all decisions.
– The Salisbury Convention requires the House of Lords to not delay or reject legislation that was in the Government’s election manifesto. The large Conservative majority in the House of Lords was faced for the first time by a large Labour majority in the House of Commons in 1945 and so the Conservative leader Lord Salisbury realised that the Lords could not oppose a Labour Government with such clear support in the country.
– The Cabinet is the ultimate decision making body of Government and major disputes will be settled there. When decisions have been taken by the Cabinet then all Ministers are bound by Cabinet Collective Responsibility and must not criticise these decisions in public. These applies even to junior ministers who are not in the Government
– Although the Government can approve treaties and declare war without Parliamentary approval it has recently become accepted that there has to be a Parliamentary debate and vote. The hostility of most of its backbenchers to the Labour Government’s proposed declaration of war on Iraq forced a vote and debate and the Foreign Secretary, Jack Straw, said that this would now be the precedent. David Cameron followed this in relation to Syria and lost the vote and so military intervention did not take place.
– Ministers must be Members of Parliament in order to answer there for their policies and decisions. This is the convention of Ministerial Responsibility to Parliament so that Ministers are responsible to Parliament for their departments and make statements and answer questions as necessary. In the 19th century some Prime Ministers were members of the House of Lords but by the 1920s it was becoming accepted that they had to be in the House of Commons, as the more democratic body.
– After devolution the Seward Convention held that Westminster would not legislate on areas that had been devolved to Scotland without consulting the Scottish Parliament.
– The Queen appoints the politician who can command a majority in the House of Commons as Prime Minister. This is straightforward when a party wins a majority in the general election but where this is not the case, as in 1974 and 2010, then the Queen will expect party leaders to reach an agreement that will allow a Government to be formed. In 1974 this led to a minority Labour Government and in 2010 to a Coalition.
Conventions are mostly written down, let alone codified but the Cabinet Secretary has produced the Ministerial Code which sets out the situation on areas such as collective responsibility, conflicts of interest and special advisers. Conventions can be replaced by legislation, so that the conventions that the Prime Minister choses when the general election will be and that the Government resigns if it loses a vote of no confidence in the House of Commons were replaced by legislation with the Fixed-term Parliaments Act 2011.
Example of ignoring conventions
The problem with conventions is that they can easily be ignored if political circumstances mean that the key politicians want to.
The Lords rejecting a budget
The Chancellor of the Exchequer, David Lloyd George, wanted to raise money in the 1909 Budget to pay for old age pensions, and for more battleships to keep up with Germany.
Backed by a large Liberal majority in the House of Commons he decided to tax land and pub licences as landowners and the drinks trade both gave strong support to the Conservatives.
The Prime Minister, Asquith, knew that the Lords, even with its huge Conservative majority, could not reject the Budget because there had been a constitutional convention for 200 years that the Lords would not interfere with a Government’s Budget.
But the Lords did reject the 1909 Budget. This created a constitutional crisis leading the Liberal Government to introduce a Parliament Bill which would turn the convention into statute law
The Westland Affair
In 1985, the helicopter firm Westland was in financial difficulty and the two possibilities of keeping helicopter manufacturing in Britain were a buyout by an American firm, favoured by Mrs Thatcher or a European consortium, favoured by her Defence Secretary, Michael Heseltine.
Knowing that the constitutional convention was that Cabinet takes the final decision on controversial issues, Heseltine asked for a Cabinet meeting.
Thatcher refused and also refused at the next Cabinet meeting of 12th December to discuss the issue further because they had no formal papers before them.
At the Cabinet of 9th January Mrs Thatcher again refused to discuss the topic and Heseltine resigned.
A strain on conventions
The Coalition has put strains on some key conventions.
The Coalition Agreement which was the compromise set of policies that allowed the two parties to go into Government is not the same as the election manifesto of either the Conservative or the Liberal Democrat party and so it is not clear whether the Salisbury Convention applies.
Liberal Democrat Ministers, especially as the general election nears, often criticised Government policy in a breach of Cabinet Collective Responsibility.
Judges may from time to time consult the books written by past constitutional experts.
These are not part of the constitution as such and certainly do not have the force of law, but, given that the British Constitution is not codified, may shed light on what the constitutional position has been on issues.
They may be used by judges to help them in discovering what the main principles are in a case, especially one involving judicial review.
Examples when they have been used
Authoritative sources may also be used in general discussion about constitutional issues.
- Walter Bagehot in The English Constitution, 1867, defined the role of the monarchy in a democracy age as the right to be consulted by the Prime Minister, the right to encourage a course of action and the right to warn of the consequences of a course of action. These principles have been discussed recently to judge whether the suggestion of Prince Charles that he would still speak on issues that he cared greatly about if he were King, would be within the Constitution
- Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament has been regularly updated by other writers and explains Parliamentary procedures. It is the leading work on Parliamentary privileges such as the right of MPs to say what they want to in debates without control by the courts. is no written document that contains the principle of the rule of law but the influential legal theorist, Dicey, writing in 1885, saw the rule of law as one of the fundamental principles of the British Constitution. There is a tradition stretching from Magna Carta and through the English Civil War that the monarch must obey the law and the courts have, through the common law, developed principles of justice and traditional freedoms, while the Human Rights Act now includes basic rights. The courts have developed a sound process of judicial review of decisions by public organisations to ensure that they act within the law.
However, Parliament has the power to change the law without any control by the courts and there have been continuous changes to the criminal law in recent years.
Detention without trial has been applied in the case of suspected terrorists and the courts have accepted this.
It could be argued that recent changes which have limited state aid to pay legal expenses have limited access to the courts and the Government is now proposing to make the criteria for judicial review more restrictive.
Britain does not have a separation of powers between the Executive and Parliament.
Although Parliament has exerted more independence in recent years, for example, through the Select Committee system which allows it to question Government policies, Ministers sit in Parliament and the Government dominates what is discussed, with Government whips putting pressure on their backbench MPs to vote with the Government.
The Judiciary has, in practice, been independent of Government even though it has been a Government Minister, the Lord Chancellor, who has appointed judges and been responsible for the justice system.
The Constitutional Reform Act, 2005 produced a clearer separation of the Executive and the Judiciary with a Supreme Court, separate from the House of Lords, and an independent Lord Chief Justice responsible for the Judiciary.
However, the doctrine of parliamentary sovereignty means that judges cannot question legislation or decisions from Parliament.