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Constitutional Change – Common Law

So if we have an unwritten (or uncodified) Constitution what does it consist of? The standard answer is that there are four components and in looking at these we have to find out where the two main function of constitutions – setting out individual rights and regulating relationships between the different parts of the State are:-

Component 1 – The Common Law

This is law created by judges. From the 13th century the English monarchs sent out their own judges to decide cases and, in doing so, they gradually developed a body of uniform law across the country, replacing the local variations that existed before. This did create some individual rights such as protection of property and protection against false imprisonment but in other areas, such as freedom to express views or personal privacy, there was no clear right and these were protected only if some other aspect of law did not prohibit them.

Other parts of common law still regulate the how the state works, for example, the doctrine of reasonableness. Ministers or local councillors can only come to decisions having seen relevant information before them and considered it in a reasonable and not an arbitrary way, disregarding irrelevant arguments. This provides some protection against hasty decisions or ones taken for purely party political advantage.

One part of common law is so important that it needs special explanation and this is The Royal Prerogative.

The Royal Prerogative

By the Tudor period, the judges had defined the legal powers of the Monarch and these were called the royal prerogatives and included, for example to right to declare war, the right to call Parliament and the right to grant pardons to convicted criminals.

These were exercised directly by Henry VIII but as the monarch became a Constitutional one from the late 17th century and as democracy developed in the 19th century, almost all these powers, although legally belonging to the Crown, were in practice used by the Prime Minister.

The importance of this is that the Government has a range of legal powers that do not need Parliamentary approval. Some of these, such as the power of Government departments to grant themselves planning permission, have been removed by legislation but key ones remain, though the use of them may change.

  • Parliament does not have to agree to the declaration of war or the signing of treaties. Tony Blair decided to call for a vote in Parliament before declaring war on Iraq, partly because of pressure from Robin Cook, who was Leader of the House, who then resigned over the issue, and partly because he knew that he was supported by the Conservative Opposition. David Cameron, with the problems of Iraq in mind, also decided to call for a vote in the Commons on a missile attack on Syria and lost and decided to abide by the vote.
  • The Monarch always had the power to open the mail in the interests of national security. This royal prerogative, by extension, has allowed the Government to tap phones and intercept email and phone data though there is now some statutory control of this.

The last decade has seen a debate over the continued existence of royal prerogatives.

On the left Tony Benn argued that they usurped the democratic rights of Parliament and put forward a Bill to replace them all by legislation, while, in opposition, David Cameron suggested that they helped maintain the sort of centralised government system that he felt Blair had increased.

Parliamentary pressure led to the Government White Paper, The Governance of Britain, in 2008 which proposed a statutory basis for declaring war, approving treaties, organising the civil service and appointing judges as well as a general review of the prerogative but has never been implemented.