Constitution of the United Kingdom


Constitution of the United Kingdom
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The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.[1]

Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one.[2] Much of the British constitution is embodied in written documents, within statutes, court judgments, and treaties. The constitution has other unwritten sources, including parliamentary constitutional conventions (as laid out in Erskine May) and royal prerogatives.

Since the English Civil War, the bedrock of the British constitution has traditionally been the doctrine of parliamentary sovereignty, according to which the statutes passed by Parliament are the UK's supreme and final source of law.[3] It follows that Parliament can change the constitution simply by passing new Acts of Parliament. There is some debate about whether this principle remains entirely valid today,[4] in part due to the UK's European Union membership.[5]

Contents

Key principles

Parliamentary supremacy and the rule of law

In the 19th century, A.V. Dicey, a highly influential constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work An Introduction to the Study of the Law of the Constitution (1885). These pillars are, first, the principle of Parliamentary sovereignty; and, second, the rule of law. The former means that Parliament is the supreme law-making body: its Acts are the highest source of English Law (the concept of supreme parliamentary sovereignty is not recognised by Scots Law, as repeated in MacCormick v Lord Advocate). The latter is the idea that all laws and government actions conform to certain fundamental and unchanging principles. These fundamental principles include equal application of the law: everyone is equal before the law and no person is above the law, including those in power. Another is no person is punishable in body or goods without a breach of the law: as held in Entick v Carrington, unless there is a clear breach of the law, persons are free to do anything, unless the law says otherwise; thus, no punishment without a clear breach of the law.

According to the doctrine of parliamentary sovereignty, Parliament may pass any legislation that it wishes. By contrast, in countries with a codified constitution, the legislature is normally forbidden from passing laws that contradict that constitution: constitutional amendments require a special procedure that is more arduous than that for regular laws.[6]

There are many Acts of Parliament which themselves have constitutional significance. For example, Parliament has the power to determine the length of its own term. By the Parliament Acts 1911 and 1949, the default length of a term of parliament is five years, but this may be extended with the consent of both Houses. This power was most recently used during World War II to extend the lifetime of the 1935 parliament in annual increments up to 1945. However, the Sovereign retains the power to dissolve parliament at any time on the advice of the Prime Minister. Parliament also has the power to change the makeup of its constituent houses and the relation between them. Examples include the House of Lords Act 1999 which changed the membership of the House of Lords, the Parliament Acts 1911 and 1949 which altered the relationship between the House of Commons and the House of Lords, and the Reform Act 1832 which made major changes to the system used to elect members of the House of Commons.

The power extended to Parliament includes the power to determine the line of succession to the British throne. This power was most recently used to pass His Majesty's Declaration of Abdication Act 1936, which gave constitutional effect to the abdication of Edward VIII and removed any of his putative descendants from the succession. Parliament also has the power to remove or regulate the executive powers of the Sovereign.[7]

Parliament consists of the Sovereign, the House of Commons and the House of Lords. The House of Commons consists of 650 members elected by the people from single-member constituencies under a first past the post system. Following the passage of the House of Lords Act 1999, the House of Lords consists of 26 bishops of the Church of England (Lords Spiritual), 92 elected representatives of the hereditary peers, and several hundred life peers. The power to nominate bishops of the Church of England, and to create hereditary and life peers, is exercised by the Sovereign on the advice of the Prime Minister. By the Parliament Acts 1911 and 1949 legislation may, in certain circumstances, be passed without the approval of the House of Lords. Although all legislation must receive the approval of the Sovereign (Royal Assent), no Sovereign has withheld such assent since 1708.[8]

Following the accession of the UK to European Economic Community (now the European Union) in 1972, the UK became bound by European law and more importantly, the principle of the supremacy of European Union law. According to this principle, which was outlined by the European Court of Justice in 1964 in the case of Costa v. ENEL, laws of member states that conflict with EU laws must be disapplied by member states' courts. The conflict between the principles of the primacy of EU law and of parliamentary supremacy was illustrated in the judgment in Thoburn v Sunderland City Council,[9] which held that the European Communities Act 1972, the Act that initiated British involvement in the EU, could not be implicitly repealed simply by the passing of subsequent legislation inconsistent with European law. The court went further and suggested that the 1972 Act formed part of a category of special "constitutional statutes" that were not subject to implied repeal. This exception to the doctrine of implied repeal was something of a novelty, though the court stated that it remained open for Parliament to expressly repeal the Act.[10] It is politically inconceivable at the present time that Parliament would do so, and constitutional lawyers have also questioned whether such a step would be as straightforward in its legal effects as it might seem. The Thoburn judgment was handed down only by the Divisional Court (part of the High Court), which occupies a relatively low level in the legal system.

The House of Commons alone possesses the power to pass a motion of no confidence in the Government, which requires the Government either to resign or seek fresh elections (see below). Such a motion does not require passage by the Lords, or Royal Assent.

Parliament traditionally also has the power to remove individual members of the government by impeachment (with the Commons initiating the impeachment and the Lords trying the case), although this power has not been used since 1806. By the Constitutional Reform Act 2005 it has the power to remove individual judges from office for misconduct.

Additionally, Dicey has observed that the constitution of Belgium "comes very near to a written reproduction of the English constitution."[11]

Unitary state

The United Kingdom comprises four distinct countries: England, Wales, Scotland and Northern Ireland.[12] Nevertheless, it is a unitary state, not a federation (like the United States, Germany, Brazil or Russia) or a confederation (like Switzerland, or the former Serbia and Montenegro). Although Scotland, Wales and Northern Ireland, as of 2001, possess their own legislatures and executives, England does not (see West Lothian question). The authority of all these bodies is dependent on Acts of Parliament and that they can in principle be abolished at the will of the Parliament of the United Kingdom. A historical example of a legislature that was created by Act of Parliament and later abolished is the Parliament of Northern Ireland, which was set up by the Government of Ireland Act 1920 and abolished, in response to large-scale political violence in Northern Ireland, by the Northern Ireland Constitution Act 1973 (Northern Ireland has since been given another legislative assembly under the Northern Ireland Act 1998). Likewise the Greater London Council was abolished in 1986 by the Local Government Act 1985[13], and a similar institution, the Greater London Authority was established in 2000 by the Greater London Authority Act 1999.

Parliament contains no chamber comparable to the United States Senate (which has equal representation from each state of the USA) or the German Bundesrat (whose membership is selected by the governments of the States of Germany). England contains over 80% of the UK's population, produces over 80% of its combined gross domestic product and contains the capital, London.

In England the established church is the Church of England. In Scotland, there is no state church, the Church of Scotland having been formally recognised as not having that status within the Church of Scotland Act 1921; Wales and Northern Ireland have no established church. England and Wales share the same legal system, while Scotland and Northern Ireland each has its own distinctive legal system. These distinctions were created as a result of the United Kingdom being created by the union of separate countries according to the terms of the 1706 Treaty of Union, ratified by the 1707 Acts of Union.

Constitutional monarchy

The United Kingdom is a constitutional monarchy: succession to the British throne is hereditary, but excludes those who are Roman Catholics.

Under the British Constitution, sweeping executive powers, known as the royal prerogative, are nominally vested in the Sovereign. In exercising these powers, however, the Sovereign normally defers to the advice of the Prime Minister or other ministers. This principle, which can be traced back to the Restoration, was most famously articulated by the Victorian writer Walter Bagehot as "the Queen reigns, but she does not rule".

The precise extent of the royal prerogative has never formally been delineated, but in 2004, Her Majesty's Government published some of the powers, in order to be more transparent:[14]

Domestic powers
  • The power to dismiss and appoint a Prime Minister
  • The power to dismiss and appoint other ministers
  • The power to summon, prorogue and dissolve Parliament
  • The power to grant or refuse Royal Assent to bills (making them valid and law)
  • The power to commission officers in the Armed Forces
  • The power to command the Armed Forces of the United Kingdom
  • The power to appoint members to the Queen's Council
  • The power to issue and withdraw passports
  • The power to grant Prerogative of mercy (though Capital Punishment is abolished, this power is still used to remedy errors in sentence calculation)
  • The power to grant honours
  • The power to create corporations via Royal Charter
  • The power to appoint bishops and archbishops of the Church of England.
Foreign powers
  • The power to ratify and make treaties
  • The power to declare War and Peace
  • The power to deploy the Armed Forces overseas
  • The power to recognize states
  • The power to credit and receive diplomats

The most important prerogatives still personally exercised by the Sovereign are the choice of whom to appoint Prime Minister, and whether to grant a dissolution of Parliament on the request of the Prime Minister. The most recent occasion the monarch has had to exercise these powers were in February 1974, when Prime Minister Edward Heath resigned after failing to secure an overall majority in Parliament. Queen Elizabeth II appointed Harold Wilson, leader of the Labour Party, as Prime Minister, exercising her prerogative after extensive consultation with the Privy Council. The Labour Party had the largest number of seats in the House of Commons, but not an overall majority. The 2010 general election also resulted in a hung parliament. After several days of negotiations, between the parties, Queen Elizabeth II invited David Cameron to form a government on the advice of the outgoing prime minister Gordon Brown.

The Sovereign normally grants any request of the Prime Minister for a dissolution of Parliament. However, several authorities agree that a Prime Minister who is granted a dissolution must win at least one vote of confidence from the newly elected Commons before he or she has the right to request any further dissolution. This would mean that, for example, a sitting Prime Minister who suffered defeat in a General Election, and was then defeated in the first confidence motion he or she faced in the new Commons, would not be granted a dissolution.[15] No refusal of a requested dissolution has happened since the beginning of the twentieth century.[15]

The last Sovereign to dismiss a Prime Minister who had not suffered a defeat on a motion of confidence in the House of Commons, or to appoint a Prime Minister who clearly did not enjoy a majority in that House, was William IV who in 1834 dismissed the Government of Lord Melbourne, replacing him with the Duke of Wellington.

Queen Victoria was the last sovereign to veto a ministerial appointment. In 1892, she refused William Ewart Gladstone's advice to include Henry Labouchère (a radical who had insulted the Royal Family) in the Cabinet.[16]

The last sovereign to veto legislation passed by Parliament was Queen Anne, who withheld assent from the Scottish Militia Bill 1708.

The Royal Prerogative is not unlimited; this was established in the Case of Proclamations (1610), which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives.

Prime Minister and Government

The Prime Minister is appointed by the Sovereign. When one party has an absolute majority in the House of Commons, the Sovereign appoints the leader of that party as Prime Minister. When there is a hung parliament, or the identity of the leader of the majority party is not clear (as was often the case for the Conservative Party up to the 1960s, and for all parties in the nineteenth century), the Sovereign has more flexibility in his or her choice. The Sovereign appoints and dismisses other ministers on the advice of the Prime Minister (and such appointments and dismissals occur quite frequently as part of cabinet reshuffles). The Prime Minister, together with other ministers, form the Government. The Government often includes ministers whose posts are sinecures (such as the Chancellor of the Duchy of Lancaster) or ministers with no specific responsibilities (minister without portfolio): such positions may be used by the Prime Minister as a form of patronage, or to reward officials such as the Chairman of the ruling Party with a governmental salary.

If the Commons votes against the Government on a matter of confidence, the Prime Minister must either resign (along with the entire government) or ask the Sovereign to dissolve parliament and call fresh elections. The Government usually resigns immediately after defeat in a general election, though this is not strictly required. For example, Stanley Baldwin's government lost its majority in the general election of December 1923, but did not resign until defeated in a confidence vote in January 1924.[17] A request by the Prime Minister to dissolve parliament is usually granted by the Sovereign, though the Sovereign may refuse such a request immediately after a general election, and instead invite another leader to form a government.[18]

The Prime Minister and all other ministers take office immediately upon appointment by the Sovereign. In the United Kingdom, unlike many other countries, there is no requirement for a formal vote of approval by the legislature either of the Government as a whole or of its individual members before they may assume office.

The Prime Minister and all other Ministers normally serve concurrently as members of the House of Commons or House of Lords, and are obliged by collective responsibility to cast their Parliamentary votes for the Government's position, regardless of their personal feelings or the interests of their constituents. The Prime Minister is normally a member of the House of Commons. The last Prime Minister to be a member of the House of Lords was Alec Douglas-Home; however, he resigned from the Lords and became a member of the Commons shortly after his appointment as Prime Minister in 1963 (there was a period of about two weeks during which he served as Prime Minister despite belonging to neither House). The last Prime Minister to serve a full administration from the House of Lords was Robert Cecil, 3rd Marquess of Salisbury, who served until 1902.

Thus the executive ("Her Majesty's Government") is "fused" with Parliament. Because of a number of factors, including the decline of the Sovereign and the House of Lords as independent political actors, an electoral system that tends to produce absolute majorities for one party in the Commons, and the strength of party discipline in the Commons (including the built-in payroll vote in favour of the Government), the Prime Minister tends to have sweeping powers checked only by the need to retain the support of his or her own MPs. The phrase elective dictatorship was coined by former Lord Chancellor Quintin Hogg in 1976 to highlight the enormous potential power of government afforded by the constitution.[19]

The need of a Prime Minister to retain the support of her own MPs was illustrated by the case of Margaret Thatcher, who resigned in 1990 after being challenged for the leadership of the Conservative Party. The strength of party discipline within the Commons, enforced by the whip system, is shown by the fact that the two most recent votes in which a Government was defeated occurred in 1986 and 2005.

Judiciary

As mentioned above, there are three separate judicial systems in the United Kingdom: that of England and Wales, that of Scotland, and that of Northern Ireland. Under the Constitutional Reform Act 2005 the final court of appeal for all cases, other than Scottish criminal cases, is the newly created Supreme Court of the United Kingdom: for Scottish criminal cases, the final court of appeal remains the High Court of Justiciary.

Vacancies in the Supreme Court are filled by the Sovereign based on the recommendation of a special selection commission consisting of that Court's President, Deputy President, and members of the judicial appointment commissions for the three judicial systems of the UK. The choice of the commission may be vetoed by the Lord Chancellor (a government minister). Members of the Supreme Court may be removed from office by Parliament, but only for misconduct.

Judges may not sit or vote in either House of Parliament (before the 2005 Act, they had been permitted to sit and vote in the House of Lords).

Church of England

The Church of England is the established church in England (i.e., not in Scotland, Wales or Northern Ireland). The Sovereign is ex officio Supreme Governor of the Church of England, and is required by the Act of Settlement 1701 to "join in communion with the Church of England". As part of the coronation ceremony, the Sovereign swears an oath to "maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England" before being crowned by the senior cleric of the Church, the Archbishop of Canterbury – a similar oath concerning the established Church of Scotland, which is a Presbyterian church, having already been given by the new sovereign in his or her Accession Council. All clergy of the Church swear an oath of allegiance to the Sovereign before taking office.

Parliament retains authority to pass laws regulating the Church of England. In practice, much of this authority is delegated to the Church's General Synod. The appointment of bishops and archbishops of the Church falls within the royal prerogative. In current practice, the Prime Minister makes the choice from two candidates submitted by a commission of prominent Church members, then passes his choice on to the Sovereign. The Prime Minister plays this role even though he himself may not be a member of the Church of England or even a Christian—for example Clement Attlee was an agnostic who described himself as "incapable of religious feeling".[20]

Unlike many nations in continental Europe, the United Kingdom does not directly fund the established church with public money (although many publicly funded voluntary aided schools are run by religious foundations, including those of the Church of England). Instead, the Church of England relies on donations, land and investments.

Sources

Acts of Parliament

One of several shelves full of books about the UK constitution at a law library

Acts of Parliament are laws (statutes) that have received the approval of Parliament – that is, the Sovereign, the House of Lords and the House of Commons. On rare occasions, the House of Commons uses the "Parliament Acts" (the Parliament Act 1911 and the Parliament Act 1949) to pass legislation without the approval of the House of Lords. It is unheard of in modern times for the Sovereign to refuse to assent to a bill, though the possibility was contemplated by George V in relation to the fiercely controversial Government of Ireland Act 1914.[21]

Acts of Parliament are among the most important sources of the constitution. According to the traditional view, Parliament has the ability to legislate however it wishes on any subject it wishes. For example, most of the iconic mediaeval statute known as Magna Carta has been repealed since 1828, despite previously being regarded as sacrosanct. It has traditionally been the case that the courts are barred from questioning any Act of Parliament, a principle that can be traced back to the mediaeval period.[22] On the other hand, this principle has not been without its dissidents and critics over the centuries, and attitudes among the judiciary in this area may be changing.[23][non-primary source needed]

One consequence of the principle of parliamentary sovereignty is that there is no hierarchy among Acts of Parliament: all parliamentary legislation is, in principle, of equal validity and effectiveness. However, the judgment of Lord Justice Laws in the Thoburn case in 2002 indicated that there may be a special class of "constitutional statutes" such as Magna Carta, the Human Rights Act 1998, the European Communities Act 1972, the Act of Union and Bill of Rights which have a higher status than other legislation. This part of his judgment was "obiter" (i.e. not binding) – and, indeed, was controversial. It remains to be seen whether the doctrine will be accepted by other judges.

Treaties

Treaties do not, on ratification, automatically become incorporated into UK law. Important treaties have been incorporated into domestic law by means of Acts of Parliament. The European Convention on Human Rights has, for example, to a considerable extent been incorporated into domestic law through the Human Rights Act 1998.

Also, the Treaty of Union of 1707 was important in creating the unitary state which exists today. The treaty was between the governments of England and Scotland and was put into effect by two Acts of Union which were passed by the Parliaments of England and Scotland, respectively. The Treaty, along with the subsequent Acts, brought into existence the Kingdom of Great Britain, uniting the Kingdom of England and the Kingdom of Scotland.

European Union law

Under European Law, as developed by the ECJ, the EC Treaty created a "new legal order" under which the validity of European Community law cannot be impeded by national law; though the UK, like a number of other EU members, does not share the ECJ's monist interpretation unconditionally, it accepts the supremacy of EU law in practice.[24]:344 Because, in the UK, international law is treated as a separate body of law, EU law is enforceable only on the basis of an Act of Parliament, such as the European Communities Act 1972, which provides for the supremacy of EU law.[25][24]:344 The supremacy of EU law has been confirmed by the House of Lords, as in the Factortame litigation. Replying to comments on the decision to override national legislation on the basis of EU law, Lord Bridge wrote "Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law."[24]:367-368

On one analysis, EU law is simply a subcategory of international law that depends for its effect on a series of international treaties (notably the Treaty of Rome and the Maastricht Treaty). It therefore has effect in the UK only to the extent that Parliament permits it to have effect, by means of statutes such as the European Communities Act 1972, and Parliament could, as a matter of British law, unilaterally bar the application of EU law in the UK simply by legislating to that effect.[26][24] However, at least in the views of some British authorities, the doctrine of implied repeal, which applies to normal statutes, does not apply to "constitutional statutes", meaning that any statute that was to have precedence over EU law (thus disapplying the 1972 European Communities Act) would have to provide for this expressly or in such a way as to make the inference "irresistible".[24]:369 The actual legal effect of a statute enacted with the express intention of taking precedence over EU law is as yet unclear.[27] However, it has been stated that if Parliament were to expressly repudiate its treaty obligations the courts would be obliged to give effect to a corresponding statute:

"If the time should come when our Parliament deliberately passes an Act – with the intention of repudiating the Treaty or any provision of it – or intentionally of acting inconsistently with it – and says so in express terms – then . . . it would be the duty of our courts to follow the statute of our Parliament" (per Lord Denning in Macartys Ltd v Smith [1979] ICR at p. 789)"[28]

Common law

Common law legal systems exist in Northern Ireland and in England and Wales but not in Scotland which has a hybrid system (see Scots law) which involves a great deal of Common Law. Court judgments also commonly form a source of the constitution: generally speaking in English Law, judgments of the higher courts form precedents or case law that binds lower courts and judges; Scots Law does not accord the same status to precedent and judgments in one legal system do not have a direct effect in the other legal systems.[29]

Historically important court judgments include those in the Case of Proclamations, the Ship money case and Entick v. Carrington, all of which imposed limits on the power of the executive.

A constitutional precedent applicable to British colonies is Campbell v. Hall, which effectively extended those same constitutional limitations to any territory which has been granted a representative assembly.

Conventions

Many British constitutional conventions are ancient in origin, though others (like the Salisbury Convention) date from within living memory. Such conventions, which include the duty of the Sovereign to act on the advice of his or her ministers, are not formally enforceable in a court of law; rather, they are primarily observed "because of the political difficulties which arise if they are not."[30]

Works of authority

Works of authority is the formal name for works that are sometimes cited as interpretations of aspects of the UK constitution. Most are works written by nineteenth- or early-twentieth-century constitutionalists, in particular A. V. Dicey, Walter Bagehot and Erskine May.

Disputes about the nature of the UK Constitution

The legal scholar Eric Barendt argues that the uncodified nature of the United Kingdom constitution does not mean it should not be characterised as a "constitution", but also claims that the lack of an effective separation of powers, and the fact that parliamentary sovereignty allows Parliament to overrule fundamental rights, makes it to some extent a 'facade' constitution.[31]

In one article, Lord Scarman presents a spirited argument for a written constitution for the UK, but still refers to the 1688 compromise and resulting acts of parliament as a constitution.[32]

A. V. Dicey identified that ultimately "the electorate are politically sovereign," and Parliament is legally sovereign.[33] Barendt argues that the greater political party discipline in the House of Commons that has evolved since Dicey's era, and the reduction in checks on governmental power, has led to an excessively powerful government that is not legally constrained by the observance of fundamental rights.[31] A Constitution would impose limits on what Parliament could do without a legal majority. To date, the Parliament of the UK has no limit on its power other than the possibility of extra-parliamentary action (by the people) and of other sovereign states (pursuant to treaties made by Parliament and otherwise).

Proponents of a codified constitution argue it would strengthen the legal protection of democracy and freedom.[34] As a strong advocate of the "unwritten constitution", Dicey highlighted that English rights were embedded in the general English common law of personal liberty, and "the institutions and manners of the nation".[35] Opponents of a written constitution argue that the country is not based on a founding document that tells its citizens who they are and what they can do. There is also a belief that any unwarranted encroachment on the spirit of constitutional authority would be stiffly resisted by the British people, a perception expounded by the 19th century American judge Justice Bradley in the course of delivering his opinion in a case heard in Louisiana in 1873: “England has no written constitution, it is true; but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour.”[36]

Devolution

Reforms since 1997 have decentralised the UK by setting up a devolved Scottish Parliament and assemblies in Wales and Northern Ireland. The UK was formed as a unitary state, though Scotland and England retained separate legal systems. Some commentators[37] have stated the UK is now a "quasi-federal" state: it is only "quasi" federal, because (unlike the other components of the UK) England has no legislature of its own, and is directly ruled from Westminster (the devolved bodies are not sovereign and could, in theory at least, be repealed by Parliament – unlike "true" federations such as the United States where the constituent states share sovereignty with the federal government). Attempts to extend devolution to the various regions of England have stalled, and the fact that Parliament functions both as a British and as an English legislature has created some dissatisfaction (see, for example, the article on the "West Lothian question").

Other constitutional reforms

The Labour government under past-Prime Minister Tony Blair instituted sweeping constitutional reforms in the late 1990s and early-to-mid 2000s. The effective incorporation of the European Convention on Human Rights into UK law through the Human Rights Act 1998 has granted citizens specific positive rights and given the judiciary some power to enforce them. The courts can put pressure on Parliament to amend primary legislation that conflicts with the Act by means of "Declarations of Incompatibility" – however only of an advisory capacity as Parliament is not bound to amend the law nor can the judiciary void any statute – and can refuse to enforce, or "strike down", any incompatible secondary legislation. Any actions of government authorities that violate Convention rights are illegal except if mandated by an Act of Parliament.

These reforms have undermined the concept of Parliamentary sovereignty somewhat, even though Parliament could still abolish the devolved assemblies and repeal the Human Rights Act. In reality such action is unlikely so these restrictions on the legislative power of Parliament are likely to remain on the statute book for the time being.

Recent changes also include the Constitutional Reform Act 2005 which alters the structure of the House of Lords to separate its judicial and legislative functions. For example the legislative, judicial and executive functions of the Lord Chancellor are now shared between the Lord Chancellor (executive), Lord Chief Justice (judicial) and the newly created post of Lord Speaker (legislative). The role of Law Lord (a member of the judiciary in the House of Lords) was abolished by transferring them to the new Supreme Court of the United Kingdom in October 2009.

Gordon Brown launched a "Governance of Britain" process when he took over as PM in 2007. This was an ongoing process of constitutional reform with the Ministry of Justice as lead ministry.

The Constitutional Reform and Governance Act 2010 is a piece of constitutional legislation. It enshrines in statute the impartiality and integrity of the UK Civil Service and the principle of open and fair recruitment. It enshrines in law the Ponsonby Rule which requires that treaties are laid before Parliament before they can be ratified.

The Coalition Government, formed in May 2010, proposed a series of further Constitutional reforms in their coalition agreement. Consequently, the Parliamentary Voting System and Constituencies Act 2011 and the Fixed-term Parliaments Act 2011 were passed. The Acts will reduce the number of MPs in the House of Commons from 650 to 600, change the way the UK is divided into parliamentary constituencies, introduce a referendum on changing the system used to elect MPs and take the power to dissolve Parliament away from the monarch. The Coalition has also promised to introduce legislation on the reform of the House of Lords.

Key statutes and conventions

Below are listed some of the statutes that may be considered "constitutional" in nature and some of the more important conventions.

Selected key English statutes

Selected key Scottish statutes

Selected key British statutes

Some important conventions

  • Relating to monarchy
    • The Sovereign shall grant the Royal Assent to all Bills passed by Parliament (the Royal Assent was last refused by Queen Anne in 1708, for the Scottish Militia Bill 1708, on the advice of her ministers).[38]
    • The monarch will not dissolve Parliament without the advice of the Prime Minister.
    • The monarch will ask the leader of the majority party in the House of Commons to form a government, and if there is no majority party, the person who appears most likely to command the confidence of the House of Commons to serve as Prime Minister and form a government. [39]
    • The monarch will ask a member of the House of Commons (rather than the House of Lords or someone outside Parliament) to form a government. It remains possible, however, for a caretaker Prime Minister to be drawn from the House of Lords.
  • All ministers are to be drawn from the House of Commons or the House of Lords.
  • The House of Lords will accept any legislation that was in the Government's manifesto (the 'Salisbury Convention') – in recent years this convention has been broken by the Lords, though the composition of the Lords (which was the justification for the convention) has radically changed since the convention was introduced.
  • Individual Ministerial Responsibility
  • Collective Ministerial Responsibility

See also

References

  1. ^ Prof. Dr. Helmut Weber: "Who Guards the Constitution?", English version of a paper delivered on 22nd October 1999 at the Centre for British Studies, Humboldt University Berlin, Colloquium of the Graduiertenkolleg „Das neue Europa“ [1]
  2. ^ Barnett, H. (2005). Constitutional and Administrative Law (5 ed.). London: Cavendish. p. 9. "Conversly, "A written constitution is one contained within a single document or a [finite] series of documents, with or without amendments", id." 
  3. ^ This principle was famously enunciated by the legal scholar Albert Venn Dicey, and can be found, for example, in Justice Megarry's judgment in the 1982 case of Manuel v Attorney General.
  4. ^ Turpin, Colin; Tomkins, Adam (2007). British government and the constitution: text and materials. Cambridge: Cambridge University Press. p. 41. ISBN 978-0521690294. http://books.google.com/?id=QYuF6jmoem8C&lpg=PT94&dq=parliamentary%20sovereignty%20doubts&pg=PT95#v=onepage&q=. 
  5. ^ Beatson, Jack (1998). Constitutional reform in the United Kingdom: practice and principles. London: Hart Publishing. p. 45. ISBN 978-1901362848. http://books.google.com/?id=YEEgDsCYmbQC&lpg=PA45. 
  6. ^ Runciman, David (2008-02-07). "This Way to the Ruin". London Review of Books. http://www.lrb.co.uk/v30/n03/david-runciman/this-way-to-the-ruin. Retrieved 2010-01-10. 
  7. ^ Bradley, A.; Ewing, K. (1997). Constitutional and Administrative Law. London. p. 271. 
  8. ^ Smith, David L. (2002). "Change & Continuity in 17th Century English Parliaments". History Review: 1. 
  9. ^ "Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 ("Metric Martyrs" ruling) 18 Feb 2002 (Extract)". Bwmaonline.com. 2002-02-18. http://www.bwmaonline.com/Legal%20-%20Extract%20from%20LJ%20Laws.htm. Retrieved 2010-11-07. 
  10. ^ Akehurst, Michael; Malanczuk, Peter (1997). Akehurst's modern introduction to international law. London: Routledge. pp. 65–66. ISBN 9780415111201. http://books.google.com/?id=4doebHRhGT8C&dq=repeal+European+Communities+Act+1972+%22international+law%22+dualist. 
  11. ^ Dicey, Albert Venn (1889) (in English). An Introduction to the Study of the Law of the Constitution. p. 86. http://www.archive.org/details/introductiontos04dicegoog. 
  12. ^ "ARCHIVED CONTENT] Number10.gov.uk » countries within a country". Webarchive.nationalarchives.gov.uk. 2003-01-10. http://webarchive.nationalarchives.gov.uk/+/http://www.number10.gov.uk/Page823. Retrieved 2010-11-07. 
  13. ^ Gallop, Nick in The Constitution and Constitutional Reform p.26 (Philip Allan, 2011) ISBN 978-0-340-98720-9
  14. ^ http://www.guardian.co.uk/politics/2003/oct/21/uk.freedomofinformation
  15. ^ a b [2][dead link]
  16. ^ Bogdanor p. 34
  17. ^ Bogdanor, p. 148
  18. ^ Bogdanor, p. 176
  19. ^ "Elective dictatorship". The Listener: 496–500. 21 October 1976. 
  20. ^ Brookshire, Jerry Hardman (1995). Clement Attlee. New York: Manchester University Press. p. 15. ISBN 071903244X. http://books.google.com/?id=Tn27AAAAIAAJ. 
  21. ^ Bogdanor, Vernon (1997). The Monarchy and the Constitution. Oxford University Press. p. 131. ISBN 0198293348. http://books.google.com/?id=HEC6Ivq2JK8C. 
  22. ^ See Prof. Jeffrey Goldsworthy's study The Sovereignty of Parliament, OUP 1999.
  23. ^ See in particular Jackson and others v Attorney General [2005] UKHL 56
  24. ^ a b c d e Craig, Paul; Grainne De Burca , P. P. Craig (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. pp. 344–378. ISBN 9780199273898. 
  25. ^ Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). EU Law (9th ed.). Oxford: Oxford University Press. p. 72. ISBN 978-0-19-927959-3. 
  26. ^ Tomkins, Adam (2003). Public Law. Oxford University Press. p. 120. ISBN 978-0199260775. "As far as English public law is concerned, even after Factortame Parliament may relatively easily legislate in violation of Community law and moreover may do so in such a way that the domestic courts have no option but to uphold and enforce the legislation." 
  27. ^ Craig, Paul; Grainne De Burca , P. P. Craig (2007). EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. p. 371. ISBN 9780199273898. "It is however unclear as yet what the UK courts would do if Parliament sought expessly to derogate from a provision of EU law, while still remaining in the EU." 
  28. ^ Quoted in Steiner, Josephine; Woods, Lorna; Twigg-Flesner, Christian (2006). EU Law (9th ed.). Oxford: Oxford University Press. p. 79. ISBN 978-0-19-927959-3. 
  29. ^ Smits, Jan (Jan 2002). The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System. Intersentia Publishers. p. 113. ISBN 978-9050951913. http://books.google.com/?id=0mayHSGq1rUC&lpg=PA113&dq. "Formerly, of course, Scots law like other Civilian systems did not recognise the strict doctrine of stare decisis, and even today it is probable that the only single decision that the Court of Session could not disregard is a precedent established by the House of Lords in a Scottish appeal." 
  30. ^ Bradley and Ewing, p.24
  31. ^ a b Barendt, Eric (1997). "Is there a United Kingdom Constitution". Oxford Journal of Legal Studies 137. http://ojls.oxfordjournals.org/cgi/reprint/17/1/137?maxtoshow=&HITS=80&hits=80&RESULTFORMAT=1&andorexacttitle=and&andorexacttitleabs=and&andorexactfulltext=and&searchid=1&FIRSTINDEX=0&sortspec=relevance&fdate=1/1/1997&resourcetype=HWCIT. 
  32. ^ Scarman, Leslie (2003-07-20). "Why Britain Needs a Written Constitution". Charter88 Sovereignty lecture. Charter88. http://www.unlockdemocracy.org.uk/charter88archive/pubs/sovlecs/scarman.html. Retrieved 2010-01-31. 
  33. ^ Dicey, A.V. (1915). Introduction to the Study of the Law of the Constitution. London: Macmillan and Company. p. 70. http://www.archive.org/details/introductiontos04dicegoog. 
  34. ^ Abbott, Lewis F. (2006). "Five: "The Legal Protection Of Democracy & Freedom: The Case For A New Written Constitution & Bill Of Rights"". British Democracy: Its Restoration & Extension. ISR. ISBN 978-0-906321-31-7. http://books.google.com/?id=xwN-MIMtE6sC&dq=isbn=090632131X. 
  35. ^ A V Dicey (1897) Introduction to the Study of the Law of the Constitution
  36. ^ "The British Constitution – Magna Carta – Icons of England". Icons.org.uk. http://www.icons.org.uk/theicons/collection/magna-carta/features/the-british-constitution-finished. Retrieved 2010-11-07. 
  37. ^ Bogdanor, Vernon (2001). Devolution in the United Kingdom. Oxford: Oxford University Press. p. 293. ISBN 978-0-19-280128-9. http://books.google.com/?id=9LybuHbzj4EC&pg=RA1-PA293#v=onepage&q=. 
  38. ^ Smith, David L. "Change & Continuity in 17th Century English Parliaments". History Review, 2002. p. 1.
  39. ^ "Draft Cabinet Manual". Cabinet Office. 2010-12-14. http://www.cabinetoffice.gov.uk/sites/default/files/resources/cabinet-draft-manual.pdf. Retrieved 2011-06-19. 

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