What is the British Constitution?

Introduction

Britain has the Sunday roast, fish and chips by the beach, its ever-changing weather and its distinctive politics. At the heart of its distinctive politics is something so brilliant, so British…its constitution. Why is the British constitution so brilliant and British? The British constitution is, like Canada’s, Israel’s, New Zealand’s, San Marino’s and Sweden’s, an uncodified constitution. This means that Britain doesn’t just have one document as the constitution, it has multiple written and unwritten sources that form the constitution. The British constitution is brilliant because it has grown a uniqueness like no other topic in this World. Even people who don’t know a thing about the constitution or politics for that matter would probably have heard that is a one of a kind. Over the many years it has been around, the British constitution has matured into one of the greatest matters in this world to discuss and to be informed about – that is why it is so brilliant and British.

This paper is here to answer a question. What is the British constitution? Is it your normal constitution? Is it as unique as the world thinks it really is? Is it the most individual collection of written and unwritten rules and principles? Of cause it isn’t limited to those three conclusions. As I am writing this, before doing any of the research, I would believe that it is the most individual collection of written and unwritten rules and principles. But as I go on my research could and probably will cause me to prefer a different answer.

Five different topics will be examined that each connect with our constitution, this will hopefully uncover a bit more of an understanding of a truly remarkable traditional constitution. The topics covered will be: Codified and Uncodified constitutions, within it we will explore the differences between these two versions that hold together each nation’s political system. Development, this will look at what steps the British constitution has taken to be where and what it is today. The principles of the constitution, what ideas are its foundations? The institutions, the three branches of power and their relationships with each other. The sources of the constitution, these are where the constitution is derived from. Constitutional reforms since 1997, what steps have recent governments taken to ensure that our constitution is ‘up to date’ with the modern world. At the end of this paper I will draw a conclusion to this paper.

What is a constitution? A constitution is a set of laws and guidelines setting out how a political system works, and where power is located within the system. It defines the powers and functions of government and the rights of many ordinary citizens in relation to the government.

What does a constitution do? A constitution describes the power between political institutions and regions. In the UK the political institutions mentioned would be the Executive (The Prime Minister and Cabinet), the Legislature (Parliament) and the Judiciary (The Supreme Court). The next point of the functions of a constitution is it establishes relations between institutions. A constitution specifies the processes and limits of government. It establishes the civil rights of the citizens. Establishes the process for becoming a citizen of the country. And a constitution establishes the method by which it itself can be amended or in some situations overrun. After the Reichstag fire in 1933 Adolf Hitler (Chancellor) passed the Enabling Act. This meant Hitler could pass laws without the consent of Parliament – Hitler had overrun the constitution.

The world-famous Jurist and Constitutional Theorist Albert Venn Dicey starts the Eighth Edition of his book ‘Introduction to the Study of the Law of the constitution’ by stating that the book was written with the sole object of explaining and illustrating the three leading principles in the existing constitution of England. These principles are the Sovereignty of Parliament, The Rule of Law.

, and the Conventions of the Constitution.[1] The next three paragraphs are what Dicey wrote on each characteristic (Due to his Eighth Edition being published in 1915 some things may differ from today).

Dicey’s statement on the Sovereignty of Parliament that he wrote is as follows. ‘The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions. And my readers will remember that Parliament consists of the King, the House of Lords, and the House of Commons acting together. The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that “Parliament” has “the right to make or unmake any new law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,” and further that this right or power of Parliament extends to every part of the Kings dominions.’[2]

This next paragraph is what Dicey wrote in his introduction on the Rule of Law. ‘The rule of law, as described in this treatise, remains to this day a distinctive characteristic of the English constitution. In England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law; every man’s legal right or liabilities are almost invariably determined by the ordinary Courts of the realm, and each man’s individual rights are far less the result of our constitution than the basis on which that constitution is founded. The principles laid down in this treatise with regard to the rule of law and to the nature of droit administrative need little change. My object in this Introduction is first to note a singular decline among modern Englishmen in their respect or reverence for the rule of law, and secondly, to call attention to certain changes in the droit administrative of France.’[3]

Dicey’s thoughts on conventions of the constitution will be summarised in this paragraph due to length. Dicey had three different points which he summed up under three questions.

· The first question is ‘Have there been during the last thirty years notable changes in the conventions of the constitution?’ Dicey’s answer is that important alterations have taken place which for sake of clearness he has two categories: New rules or customs which will still continue to be mere constitutional understandings or conventions. And secondly: Understandings or conventions which have since 1884 either been converted into laws or are closely connected with changes of law.

· The second question is ‘What is the general tendency of these new conventions?’ Dicey answered with the following. It assuredly is to increase the power of any party which possesses a parliamentary majority and to place the control of legislation and indeed the whole government of the country, in the hands of the Cabinet which is in England at once the only instrument through which a dominant party can exercise its power.

· The third question is ‘Does the experience of the last thirty years confirm the doctrine laid down in this treatise that the sanction which enforces obedience to the conventions of the constitution is to be found in the close connection between these conventions and the rule or law?’ Dicey responded with the following. The reason why every Parliament keeps in force the Mutiny Act or why a year never elapses without a Parliament being called to Westminster, is simply that any neglect of these conventional rules would entail upon every person in office the risk, we might say the necessity, of breaking the law of the land.

As this introduction draws to a close, it is certainly clear that there is a lot to come. With everchanging conventions and new statutes being passed through Parliament, there always will be a lot to come with the British constitution. Now, let’s descend into what is the British constitution?

Codified and Uncodified Constitutions

The easiest and quickest way to categorise constitutions from different countries is by whether they are codified, or uncodified. The majority of states (188) have a codified constitution, the most well known country with a codified constitution would be the United States of America. Whereas the minority of states (6) have an uncodified constitution, the most well known country with an uncodified constitution being Britain. Canada and New Zealand are two of the 6 countries with an uncodified constitution – due to being former colonies of the British Empire you can find parts of their constitutions that do remind you of the British constitution.

Codified Constitution

What does codified mean? A codified constitution means that all the fundamental rules and principles that outline the role, limits and relations of a government are all written as one document or a code. This is the ‘modern’ idea of the constitution. The first ‘modern’ constitution was signed on 17th September 1787 – The United States of America. In Thomas Paine’s ‘Rights of Man’ he provided the first clear statement of the modern idea of a constitution. he claimed such a constitution must include the following 4 points:

· It must have a real rather than virtual existence; a constitution is a thing and specifically, a document.

· The constitution is a thing antecedent to a government. Since it establishes the government, it cannot be made by government, but only by ‘the people’.

· The constitution must fully specify the powers and duties of the government: it must be comprehensive.

· The constitution has the status of fundamental law. Being the law of law-making, the Constitution is a higher form of law: since this body of constitutional law is not made by the governing institutions but by the people to establish those institutions, governments and legislatures have no authority to alter the constitutional law.[4]

With this form of constitution comes different principles than the form of uncodified. The first principle is Authoritative. This means that a constitution can be seen as a higher law than standard legislation. This arrangement is known as a two-tier legal system - two levels of law, higher laws which are those that concern constitutional arrangements and are safeguarded and entrenched, and lower laws which are ordinary laws which normally can be changed without special procedures.

The next of the three principles is that a codified constitution is entrenched. This means that it is very difficult to amend or abolish a part or the general whole constitution. Entrenchment makes the constitution more stable on the basis that it is hard to change. To make a change to an entrenched constitution the legislature might need a two third majority or a referendum may have to be called – but you won’t have to worry about how because the constitution will give you the way to amend or abolish itself.

The last principle is that a codified constitution is judiciable. Due to the Constitution being a higher law, it allows for other laws to be judged against it, to see if the laws being judged against it are constitutional. As you might have guessed already this function is carried out by the judiciary.

With this type of constitution there are advantages and disadvantages. An advantage with codified constitutions is that the role of government is very clear and established. If a government were to overstep these rules it is not like they could cover it up. This shows that governments are limited, giving the people more freedom over their lives.

Another advantage of a codified constitution is that the basic rights are enshrined into the document of the constitution. Enshrined means that no legislation could remove these rights. In the American constitution there is the Bill of Rights which consists of the first 10 amendments to the constitution. they are as follows:

1. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2. A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.

7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, other than according to the rules of the common law.

8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These 10 rights are enshrined in the constitution. they can’t be removed by creating new law.

My last advantage before moving on to the disadvantages of this kind of constitution is that because it is written on one document, all together, easy to read, the political procedure for things is very clear and straight forward to follow. Codified constitutions allow for the removal of precedent as a form of procedure – making it far more clear cut.

The first of two disadvantages is that with entrenchment comes rigidity. Yes, it may make the constitution more stable but if things become, for example, out of date then the legislature can easily amend it and get on with day-to-day business. Do you want a constitution that is a pain to amend – and when you do it takes a long time? Or a constitution that can be changed at the will of the legislature easily and in efficient time? I would prefer the latter.

My last disadvantage and my last paragraph on codified constitutions is Judicial tyranny. The constitution needs to be interpreted, but by who? Well, this job comes under the responsibilities of the Judiciary. A Federal Judge can declare the laws and constitution of an entire state in the U.S. null and void if they want to – without legal precedent. I could point out that that is a lot of power for an unelected official, but we (the British) have the House of Lords (But I am personally in favour of the current system in the UK involving the Upper House).

Uncodified Constitution

What does uncodified mean? When talking about an uncodified constitution it means that the constitution isn’t written down in one document. This type of constitution has numerous sources, written or unwritten, that make it. Later, in this paper when it is solely focusing on the British constitution, it will look at the British constitution’s five sources. 1) Works of Authority, 2) Conventions, 3) Royal Prerogative, 4) Common Law, 5) Statute Law. But for now, when talking about uncodified constitutions it will be about the constitutions of three out of the six uncodified constitutions from different states (that includes the Basic Laws of Sweden and Israel). Although they are all ‘built’ the same way the principles of uncodified constitutions differ from state to state unlike with codified constitutions where due to the type of constitution they are they always have certain principles.

In the Basic Laws of Sweden there are four fundamental laws which regulate the political system. The first fundamental law is the Instrument of Government, this defines the rights and freedoms of the Swedish people. The Instrument of Government grants the power to commission a Prime Minister to the Riksdag. The first Constitutional Instrument of Government was enacted in 1719, marking the transition from autocracy to parliamentarism. In 2009 the Riksdag approved proposition 2009/10:80, A reformed constitution. This amendment modernised and simplified the text in general.

The second fundamental law in Sweden is the Freedom of the Press Act. When this Act was passed it abolished censorship and restricted limitations to retroactive legal measures. It has been changed several times since its first incarnation. After Gustav III’s coup the Act was amended to curtail the freedom of the press but in 1810 it was restored to its former self.

The third fundamental law in Sweden is Freedom of Expression. The basic provisions are 13 articles outlining the freedoms of this law. As with the Freedom of the Press Act, Freedom of Expression can also be limited by law. An example of this is Sweden criminalises several behaviours aimed at groups and individuals, including hate speech, enticement and defamation. Although Sweden isn’t the only country to criminalise these (most countries have) it is a good example to show the conflict of liberty and authority in Sweden.

The fourth and final fundamental law in Sweden is the Act of Succession. This Act regulates the line of succession to the Swedish Throne. As well as the line of succession it also defines the conditions and rules members of the Swedish Royal Family must abide by to be able to remain in the family. The Act has been changed a lot through the years, the biggest and most notable amendment was when in 1980 the core principle of agnatic primogeniture (male succession only) was changed to absolute primogeniture (eldest child regardless of sex is the successor).

The next states constitution being examined is that of Canada. Canada has five provisions of their constitution which are the principles. A key part of Canada’s constitutional framework is the provision for a Constitutional Monarchy. In the Constitution Act of 1867 states that the executive government and authority in Canada is vested in the Canadian Monarchy. The Act also outline the roles of Governor General and the Lieutenant Governors. It is important to note though that whilst the Act states in writing that the executive authority lies in the hands of the Monarch and their representatives, in unwritten constitutional convention it is the Prime Minister and their Cabinet who hold the power.

The Constitution Act of 1867 also establishes a Parliamentary system of government. In this system there is a federal Parliament, this Parliament consists of two legislative chambers, the House of Commons and the Senate. The Act goes on to say that the powers and authority of these legislative chambers are modelled upon those of the British Parliament. The Act further establishes legislative chambers at provincial (Provinces are the Canadian equivalent of British regions apart from being a lot bigger) level. As well as the written provisions there also exist several unwritten constitutional conventions of the Act. One of these conventions is executive dominance by the Prime Minister and Cabinet and by the Premier and Cabinet (provincial level).

The third provision is Federalism. This means there are two key levels of government in Canada, Federal (National) and Provincial (Region). The 1867 Constitution Act outline the powers and jurisdictions for each of these levels of government. Over time these jurisdictions and powers have been updated to be clearer. There have also been multiple constitutional amendments that have had significant consequences to Canada’s federal system. One example is of the 1982 Constitution Act which committed the federal and provincial governments to ensuring some level of economic and social equality between the regions. This led to the development of the Equalisation Programme and the sharing of public funds between governments.

The fourth provision is Individual Rights and Freedoms. As well as outlining the structure of government the constitution provides a broad set of individual rights and freedoms – which are stated in the Canadian Charter of Rights and Freedoms. Key rights from this charter include: Fundamental freedoms e.g. the freedoms of religion and expression. Democratic rights e.g. the right to vote and run for political office. Legal rights e.g. the right to be secure from unreasonable search and seizure. And Equality rights e.g. the right to be treated equally before the law. It is important to note that the charter only states these rights and freedoms in very general terms.

The fifth and last provision is Language and Aboriginal Rights. These rights are split into two groups, the Language Rights and the Aboriginal Rights. The Language Rights establish both English and French as Canada’s official languages. Both languages have equality of status in all federal government institutions. The Charter which the language rights are in extends several minority language education rights. This means that if, for example, an English citizen was in the linguistic minority of a province, they have the right to be educated in their language. The second group of rights are the Aboriginal Rights. In the Constitution Act 1982 it recognises and affirms the existing Aboriginal and Treaty rights. The Act also states that Aboriginal groups must be consulted before any amendment is made to Class 24 of Section 94 of the Constitution Act 1864 – which places Aboriginal people and reserve lands under the jurisdiction of the federal government.

The last uncodified constitution that is going to be discussed before the end of this section is that of New Zealand. New Zealand has four principles on which they lie their constitution. The first out of the four is the Rule of Law. Everyone is subject to the law, including the government. The law should be clear and clearly enforceable. And there should be an independent, impartial judiciary. Those three points are what are included in the Rule of Law in New Zealand but also in many countries around the world. This principle occurs in pretty much every democracy in the world.

The second principle of New Zealand’s constitution is Representative democracy and free, fair elections. Members of New Zealand’s Parliament are elected through free, regular (every three years) and fair elections. Almost all citizens and permanent residents may vote and put themselves up for election. On the New Zealand Legislation Design and Advisory Committee’s website it states that any attempt to affect either the process by which elections are conducted or the eligibility criteria to vote or stand as a candidate will be the subject of considerable scrutiny.[5]

The third principle is parliamentary sovereignty. This means that Parliament is the supreme law-making body. The House of representatives has the exclusive power to regulate its own procedures. Any previous Parliament cannot prevent a subsequent Parliament from repealing or amending existing legislation, or from passing new legislation. The courts cannot interfere with the legislative process. There is no higher body than Parliament – no Constitutional Court. Parliament can theoretically legislate anything.

The fourth and last principle is the Separation of Powers. This means that each of the branches of government (Executive, Legislature and Judiciary) must only carry out its own responsibilities. No branch should intrude or assume the role of any of the other two. This principle helps to reduce the potential for abuse of power. The Legislature can hold to account the executive, but there is still a connection in New Zealand between the two as Ministers must be members of the House of Representatives. Separation between the legislature and the judiciary requires that legislation cannot direct the punishment and guilt of those accused and charged with a crime without due process of law. Any legislation that does so undermines the independence of the judiciary.

Understanding codified and uncodified constitutions and the differences between them is important if you want to extend your knowledge of constitutionalism. This section has covered the principles of a codified constitution and the advantages and disadvantages of one. And it has discussed

three different uncodified constitutions. But now we must focus on one constitution, the British constitution, as we uncover the answer to the question; What is the British Constitution?

Principles

When a person or couple or family decide to build a home the first thing that happens on the site is the builders dig down and lay the foundations. These foundations mean that the house is level and that it won’t sink into the ground and collapse. Like a house the British constitution has foundations, six to be precise. These shape the use of political power and keep the constitution from sinking into the ground and collapsing. The six principles are: Parliamentary Sovereignty, the Rule of Law, Responsible Government, Executive Dominance, Independent Judiciary and Fusion of Powers. Within this section of this paper these principles which uphold a British masterpiece will be examined to find out what they can tell us about the question ‘What is the British constitution’?

Parliamentary Sovereignty

Parliamentary Sovereignty is a concept where the legislative body is supreme over all other government institutions. The famous constitutional theorist Albert Dicey explained Parliamentary Sovereignty within the UK with three different parts. The first is that legislation passed by Parliament cannot be struck down by a higher body like a constitutional court, Parliament is the highest body in the land, in the UK the Supreme Court can only interpret acts of Parliament. The second is that no Parliament can bind its successors and it can repeal any acts passed by previous Parliaments. An example of this is in 2011 the Cameron-Clegg coalition passed the Fixed-term Parliaments Act but as we found out in the 2021 Queen’s Speech the Johnson administration is planning to repeal it. And the third and last part is that parliament can pass a law on absolutely any subject. Theoretically Parliament could pass a law giving away its sovereignty to a single person or a different group, but that would be highly unlikely.

Rule of Law

Dicey also wrote about the Rule of Law which is equally as important as Parliamentary Sovereignty. Dicey says that in England no man can be made to suffer punishment or to pay damages for any conduct not definitely forbidden by law[6]. He goes on to explain that no man is above the law and no matter what their role in society is, everyone is subject to the ordinary laws of the land. LexisNexis, which is the publisher of Erskine May and a firm which focuses on Legal Solutions, have given their definition of the rule of law. Firstly, equality under the law, it does not matter whether you are a citizen or monarch,. rich or poor. This is the same point Dicey put forward in his definition of the concept. Secondly, everyone has access to published law, everyone can learn what the law is. Thirdly, the law should be administered by an independent judiciary, law will always be politically influenced when being made but with an independent judiciary it can apply the law fairly and equally. And lastly that everyone has access to justice – even if you have fair laws, which are fairly applied, if you cannot get access to justice, you have no remedy.[7] It is interesting to compare definition of a concept brought to England by the Normans given by a 19th/early 20th century constitutional theorist and a more recent one given to us by a prominent law firm. But you can even trace the concept back to ancient Athens mythology. In Lord Sumption’s book, Trials of the State, he uses the following mythological story to explain how law is not just an instrument of corrective or distributive justice. It is an expression of collective values and an alternative to capricious violence and despotism. Agamemnon, the King of Mycenae, sacrificed his daughter so the gods would allow his fleet to sail against Troy. His wife murdered him to avenge her daughter, but then her son murdered her. Athena, the goddess of wisdom, put a stop to this circle of violence by creating a court to impose a solution, this solution is called the public interest in the modern world: the welfare or well-being of the general public. In the third part of Oresteia the goddess justifies her intervention by saying “Let no man live uncurbed by law, nor curbed by tyranny.’ This understanding of the concept given to us by an ancient mythological goddess has contributed to centuries of philosophers and political thinkers diving deeper into the concept.

Responsible Government

This principle is a system of government that embodies Parliamentary accountability. In the UK the government is responsible not to the monarch but to Parliament. The government is more responsible to the House of Commons than to the House of Lords as it is more representative than the upper house, that is why the government is drawn from the lower house. This principle, as said before, embodies Parliamentary accountability which means that ministers of HM Government have to account to Parliament about their decisions and the performance of their department. This can often be seen in the form of ministerial statements, ministerial question time or during a select committee showdown. The principle of responsible government is an important one because if we want our Parliamentary system to work and our constitution to succeed then cooperation is essential from the executive and legislature.

Fusion of Powers

In many great presidential democracies across the globe a key principle of their constitutions is the separation of powers, but in the United Kingdom our constitution stands on the fusion of powers. This is when the executive and legislature branches are intertwined. Walter Bagehot first coined the term in his famous book The English Constitution. A great example of the fusion of powers is the role of the Lord Chancellor. Before 2005 the role of the Lord Chancellor was a fusion of all three branches in the UK. They would be Speaker of the House of Lords (role is now called the Lord Speaker), a government minister heading the Lord Chancellor’s Department and the head of the judiciary. But due to the Constitutional Reform Act 2005 which saw the creation of the Supreme Court, the responsibility of being at the head of the judiciary was stripped away from the Lord Chancellor and and the role handed to the Lord Chief Justice. As said earlier, the responsibility of the Speaker of the House of Lords was also stripped away and the post of Lord Speaker was created. Now this role usually comes with the role of Secretary of State for Justice, which means that Robert Buckland MP (Con) is now the Lord Chancellor. This role used to be fused of all three branches but was reformed to just one.

Executive Dominance

This principle, quite commonly known as ‘elective dictatorship’, is when the government of the day has a complete majority in the House of Commons. The legislative agenda of Parliament is determined by the government, due to standing order 14, and the nature of the majority first-past-the-post electoral system, which almost always produces a majority government means that, with party discipline, government bills virtually always pass the House of Commons. The term elective dictatorship is quite accurate because with the principles of Executive Dominance and Parliamentary Sovereignty, the government can pass a law on anything.

Independent Judiciary

Although the UK has the principle of fusion of powers between the executive and legislature, since 2005 the Judiciary has been completely independent. Prior to that there were Law Lords but when the Supreme Court was made, they left their seats in the House of Lords and moved just across Parliament Square and took up 12 seats in Middlesex Guildhall thereby separating their role from the legislature. An independent judiciary is a key principle to our constitution because when law is being made in Parliament it is politically moulded so when interpreting the constitution and law an independent body can make an impartial interpretation. It is important to note that with the UK Supreme Court it can only interpret the constitution and law, it cannot overturn anything due to Parliamentary sovereignty.

The principles of our constitution are possibly the best part of it. I will give you an example of why. On one hand we have Parliamentary Sovereignty, a core principle in our Parliamentary democracy. But on the other hand, still a principle but that of Executive Dominance, this doesn’t have nearly the same importance as Parliamentary Sovereignty and we saw this difference in 2011 with the AV referendum. They are both a principle of our constitution but have different importance, which ones are more important than others?

Sources

As talked about in the Codified and Uncodified section, with an uncodified constitution it is made from several sources. In the UK these sources are Statute Law, Common Law, Prerogative Powers, Conventions and Works of Authority. It can also be said that the Magna Carta is also a source so it will also be included.

Prerogative Powers or otherwise known as the Royal Prerogative

This term describes the powers held by the Monarch or by Government Ministers that may be used without the consent of the House of Commons or the House of Lords. An example for the Monarch to use these powers is for the dissolution of parliament. If the Prime Minister loses a vote of no-confidence, they will request that the Monarch dissolves Parliament so they can hold a General Election – the Monarch does not need Parliament to give them consent. An example for a Minister to use these powers is when the Prime Minister is choosing their Cabinet. In America the Senate have to approve the Cabinet nominees whereas in the UK the Prime Minister doesn’t have to go through that process to have a Cabinet because it has the prerogative power.

Conventions

Conventions of the constitution consist of customs, practices, maxims or precepts which are not enforceable by law but almost universally recognised in the UK. These conventions do not make a body of law but instead constitutional or political ethics.[8] An example of a convention is the ‘Salisbury Convention’ (named after the last Prime Minister who sat in the House of Lords, Lord Salisbury (Con)). This convention is that the Lords will not oppose the second or third reading of any Government legislation promised in its election manifesto or also in the case of a hung Parliament.

Common law

After the conquest of the Normans, the courts, set up by the English Monarchs began to create a single body of law to apply across the country which would be superior to the local laws and customs that had existed before, this is common law. Common law is like the other source of the constitution, conventions, it is a precedent by which judges follow. A crime is said to be an offence of common law if the judges have always treated it as a crime. Examples are murder, manslaughter and common assault.

Statute law

The definition of a statute is a written law passed by a legislature or decree by a ruler. An Act of Parliament (also called a statute) is a law made by the UK Parliament. All Acts start as bills introduced in either the Commons or the Lords. When a bill has been agreed by both Houses of Parliament and has been given Royal Assent by the Monarch, it becomes an Act. The difference between these two types of law is that common law is developed by judges, but statute law are Acts passed by Parliament. A well-known example of a Statute Law is the Freedom of Information Act 2000. This statute provides public access to information held by public authorities, public authorities are obliged to publish certain information about their activities and members of the public are entitled to request information from public authorities.

Works of Authority

Works of Authority in the United Kingdom constitution are books written by constitutional theorists that are authoritative guides to the UK Constitution. The United Kingdom has no written overall constitution, so these are guides as to the rules and customs of the country. They can be adopted or overridden by acts of Parliament. Examples of Works of Authority are: Walter Bagehot's The English Constitution (1867), An Introduction to the Study of the Law of the Constitution (1885) by A. V. Dicey,A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (popularly known as Parliamentary Practice), first published in 1844, by Erskine May and the Rule of Law by Lord Bingham.

The Magna Carta

The Great Charter is one of the most important documents in British History. It establishes the principle that everyone is subject to the law, even the King, and guarantees the rights of individuals, the right for justice and the right to a fair trial. The whole document was written in Latin, and the original Magna Carta had 63 clauses. Today, only three of these remaining on the statute books; one defends the liberties and rights of the English Church, another confirms the liberties and customs of London and other towns and the third gives all English subjects the right to justice and a fair trial. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.[9] That is what it says in Archbold (2009 Edition). But forget the words for a second and just think about the fact that the principle of having a fair trial is still in the heart of legal systems today. It technically is at the heart of the constitution.

Development

It can often be mistaken that reform and development are the same thing, when both things are applied to something it changes. But they are different – reform is amendment of what is defective, vicious, corrupt or depraved. But development is the process of developing, growth, the major changes in its life. This section is taking a look at the development of the British constitution, The Magna Carta (this will be excluded from this section because it has already been covered in the previous one) 1216, The Bill of Rights 1689, The Act of Settlement 1701, The Acts of Union 1707 and the Parliament Acts 1911 and 1949.

The Bill of Rights

The next major development after the Magna Carta was the Bill of Rights. This bill passed in 1689 sets out certain basic civil rights and who would be next to inherit the Crown. It lays down limits on the powers of the monarch and sets out the rights of Parliament. This piece of legislation also included no right of taxation without Parliament’s agreement – a key example of more Parliamentary sovereignty being weaved into its development. This bill however doesn’t only play a part in the British constitution’s history, it was one of the models for the United States Bill of Rights of 1789, the United Nations declaration of human rights of 1948 and the European Convention of Human Rights of 1950. This Bill and the Act of Settlement are still in effect in all Commonwealth realms. But following the 2011 Perth Agreement, legislation amending both Acts came into effect in 2015 across all the Commonwealth realms.

The Act of Settlement

This piece of legislation was passed in 1701. It reinforced the Bill of Rights 1689. The main aim of this Act was to enact a Protestant succession to the English throne. In 1707, as a result of the Act of Union, this Act was extended to Scotland. As a result of the Act of Settlement, George I inherited the throne, despite there being over 50 Catholic people with claims to the throne. Other clauses in the Act included a declaration that the judges could only be removed by Parliament. This Act was more specific than the Bill of Rights on the succession to the Crown – creating more of a ‘criteria’ for it. The Act contained eight other provisions that were to only come into effect upon the death of Queen Anne (Reign 1702 – 1714).

1. The monarch shall join in communion with the Church of England (This would make sure of the exclusion of the Roman Catholic Church).

2. If someone not from England ascends to the throne, England will not declare war for any dominions or territories which do not belong to the Crown of England, without the consent of Parliament (Another example of Parliamentary Sovereignty, this specific criterion was important when the House of Hanover ascended the throne).

3. No monarch could be allowed to leave Great Britain without the permission of Parliament (This was repealed in 1716 by the request of King George I, the Elector of Hanover)

4. All government business under the jurisdiction of the Privy Council was to be carried out there, and all council resolutions should be signed by those who advised and consented to them (This was because Parliament wanted to know who was deciding policies, it was repealed during the reign of Queen Anne).

5. No foreigner, even if they become a citizen, can hold the offices of: Privy Councillor or member of the Houses of Parliament (The British Nationality Act 1981 made neutralised citizens equal to native born, and excluded Commonwealth and Irish citizens from the definition foreigners, but otherwise the provision still stands).

6. No one who has an office under the monarch or receives a pension from the Crown can be a Member of Parliament (This provision is still enforced but has exemptions in several occasions).

7. The commission of a Judge is valid as long as they behave themselves, if they aren’t then they can be removed by both Houses of Parliament (This provision was due to multiple monarchs influencing judge’s decisions – this was ensuring judicial independence).

8. “No pardon under the Great Seal of England be plead able to an impeachment by the House of Commons in Parliament” (This meant that if someone was pardoned by the Queen, they are still impeachable by the Commons).

The Acts of Union

In 1706 the Parliament of England passed the Union with Scotland Act and in 1707 the Parliament of Scotland passed the Union with England Act. Before these Acts were agreed they were two separate states, with separate legislatures but had the same monarch. But now they were “United into One Kingdom by the name of Great Britain.” The now one single parliament met for the first time in October 1701. But when suggestions were first proposed in the House of Lords they were shot down by the English – unlike in Scotland where they were in favour of a union mainly because of the poor state of their economy. Now any observer would exclaim ‘how the tides have changed!’

The Parliament Acts

1911: Following the rejection of the Liberal Government’s People’s Budget by the House of Lords in 1909 – the Commons needed to ensure their dominance over the Lords. In 1911 the House of Commons passed the Parliament Act, which was widely opposed by the Lords. This Act replaced the Upper House’ power of vetoing money Bills with a two-year delaying power. This bill also limited the length of a Parliament from 7 years to 5 years.

1949: After the second world war Clement Atlee planned a radical programme of nationalisation but was worried that the Lords would delay it – therefore putting it in jeopardy of it not being completed in the lifetime of that Parliament. In 1947 his administration introduced a bill to limit the time the Lords could delay a bill from two years to one. The Lords attempted to block the bill and did so in 1941 and 1948 until the 1911 Parliament Act was used to get it through.

Constitutional Reforms Since 1997

Like said previously, there is a distinct difference between reform and development that is often mistaken. In this section – the last one before the conclusion, we will dive into several constitutional reforms since 1997. Why 1997? Due to the Labour Party landslide victory this year is often thought off as the beginning of a massive wave of reforms that carried through Blair and Brown’s Labour administrations and also through the Cameron, May and Johnson Conservative administrations.

The Scotland Act, The Wales Act and The Northern Ireland Act

These three Acts created the devolved governments and legislatures. In Scotland the Scottish Parliament was formed with tax varying powers and the Scottish Government was formed. In Wales the National Assembly was established (there was already a Welsh government). And in Northern Ireland the Northern Ireland Assembly was formed after decades of direct rule from Westminster.

The Human Rights Act

The aim of this piece of legislation was to incorporate the rights in the European Convention of Human Rights into UK law. This meant that if there was a breach of rights it could be taken to a UK court instead of the European Court of Human Rights. This Act passed under Blair’s Government, made it unlawful for public bodies to act in a way that is incompatible with the convention. Michael Howard’s successor as Leader of the Opposition, David Cameron, said that he wanted to repeal the Human Rights Act and replace it with a British Bill of Rights. In 2013 Judge Dean Spielman, the President of the ECHR, warned that the UK could not withdraw from the convention without compromising its membership with the EU. I guess that doesn’t really matter anymore.

The House of Lords Act

Before the Labour landslide in 1997 several hundred members of the Lords who inherited their seats did not need to worry, but it all changed from then on. In 1999 the government of the day passed the House of Lords Act which saw all but 92 hereditary Lords lose their right to sit in the Upper House. Due to the Act the majority of peers were now life members. As of November 2019 there were 793 peers, 26 of whom are senior Church of England Bishops.

The Constitutional Reform Act

Before 2005 we never had a Supreme Court, we had the Law Lords who sat in the Lords. 2005 was the year which saw the removal of the Law Lords and the creation of the Supreme Court. But the Supreme Court was not formally established until October 2009. The responsibility of the Lord Chancellor as the head of the judiciary was handed to the Lord Chief Justice. The criteria set out in the Act to be appointed as a judge of the Supreme Court is as follows:

(a) held high judicial office for a period of at least 2 years,

(b) been a qualifying practitioner for a period of at least 15 years,

(c) satisfied the judicial-appointment eligibility condition on a 15-year basis, or

(d) been a qualifying practitioner for a period of at least 15 years.

The Fixed Term Parliament Act

In 2011 Deputy Prime Minister Nick Clegg introduced this bill which was the first to set a default date for the next election. The 1911 Parliament Act reduced the maximum Parliament session from 7 years to 5 but that never set a fixed date for the next general election. To bring the election to a closer date there had to be a two thirds majority or more in the Commons for it to be triggered. The most recent example of this Act being a ‘nuisance’ is when Boris Johnson tried and tried again to call an election but could never get enough votes – until of course he did which resulted in the 2019 General Election that gave him his massive majority. In the Conservative Party’s manifesto that year he vowed to repeal the Fixed Term Parliament Act so then the power to call another election would lie with the Prime Minister, like it originally did.

The European Union Act

This Bill, which passed Parliament and reached Royal Assent in 2018, provided two things. Firstly – it repeals the European Communities Act 1972. And Secondly – any negotiations over the UK’s withdrawal from the EU between the Government and the European Union had to be voted on. Theresa May’s administration regarded it as the most significant constitutional legislation to be passed by Parliament since the European Communities Act itself.

Conclusion

Now to try and provide an answer to the question ‘What is the British Constitution?’

Perhaps to think of the UK constitution as an environment within which we exist, a new one which humans are still learning from even though we were responsible for bringing it into existence. With exposure to this environment we are learning about the true nature of our constitution – we know and have tested the principles on which it stands, we know its sources, we are continually experiencing its nature. Our constitution has three pillars. The first is its principles. The second is its sources. And the third pillar is the people. These are the pillars of the British constitution – an environment. In the next three paragraphs I will elaborate on each pillar.

The first pillar is its principles – although this and sources sound very obvious in what the constitution needs, they should not be overlooked. Previously each individual principle has been looked at, but together what do they do for the constitution and why are they so important for it to function? For a person a principle is usually to help them stay focused on what is important in their life, even when the herd of society is pulling in a different direction the principles will keep you heading in the direction you want to go. This is very similar to the British constitution. Take the principle of the Rule of Law for example. If we are saying the constitution is an environment, then the principle in question puts the focus in the environment on how no man is above the law, and if the rest of the world heads towards turmoil and anarchy, this environment won’t follow the pattern – it will stick to the rule of law.

The second pillar is the constitution’s sources. This paper hasn’t been constructed solely from my own theories and words – sources like Dicey and Jonathon Sumption have also been used, and that is exactly like the British constitution. The six sources all play a part in the constitution. Although they aren’t combined by anything they are together the British constitution. This is an important pillar because for instances in judicial matters they may refer to a statute law or a prerogative power. It is difficult to say which of these two pillars are more important. Why? Due to them being entangled with one another – the principle of Parliamentary sovereignty is written about in an authoritative work, so the principle is in the source. But we understand the principle due to the source, so the source is in the principle.

The third and final pillar is the people, the people within the environment. The people within the environment of the constitution are the people who evolve it, for example: MPs and Peers (lawmakers), authors of authoritative works and Judges. Although the constitution can develop naturally with the times it is mostly contributed to by people, it teaches us a lot about the people who were around it and adjusted it to fit in the type of world they lived in. The constitution deeply contrasts from different times in history to the present day. Even though I said the third pillar is the people within in this environment who evolve it I must also stress that the people outside it are equally capable of changing it. For the outside is the reason why today’s constitution contrasts so much from yesterday’s constitution. For the world that Jacob Rees-Mogg might want cannot adopt todays constitution and wish to function.

Those three pillars are exactly what the environment of the British Constitution needs. Take a classroom environment for example – there are the teachers around you, giving you the necessary skills for the future, but also you’re the experience of your peers from who you also learn. Teachers will institute strong values which will guide you in life, hopefully you will learn to lead a life that positively contributes to a good society. One will have favourite subjects at school which are the source of your enjoyment in the classroom. The UK constitutional environment is also relatable to a biological environment, for example – a rainforest. All the plants have principles, to grow and evolve and survive as well as the animals, to hunt and survive. The soil and the sun are the sources for the plant’s nutrients and food making processes and the food chain for the animals which live in the rainforest. And finally, instead of people it is biodiversity which keeps many plants and animals alive.

The British constitution could therefore be likened to one of four environments:

1. An environment relatable to that of a school or the classroom.

2. An environment relatable to a rainforest (biological) and its intertwined ecosystems.

3. An environment relatable to both suggested environment styles of a school or classroom and a rainforest and its intertwined ecosystems.

4. An environment relatable to neither proposed environment styles of a school or classroom and a rainforest and its intertwined ecosystems.

From my research for this paper, reading the books, the websites, diving into the online parliamentary collections – I can say confidently that in my opinion it is a mix of all of the suggested environment styles. Something that is obviously non-biological but yet can surprise you when you least expect it.

The British constitution is interdependent with its sources and principles but also requires the human touch. What is the British Constitution? Our constitution is an environment, a British one. [1] A.V. Dicey (1915) Introduction to the Study of the Law of the Constitution 8th ed, London: Macmillan and Co, P. xxxv [2] A.V. Dicey (1915) Introduction to the Study of the Law of the Constitution 8th ed, London: Macmillan and Co, P. xxxvi [3] A.V. Dicey (1915) Introduction to the Study of the Law of the Constitution 8th ed, London: Macmillan and Co, P. Iv [4] Thomas Paine (1791) Rights of Man, Mineola, New York: Dover Publications, P. 33 [5] New Zealand’s Legislation Design and Advisory Committee Members (2018) ‘Fundamental Constitutional Principles and Values of New Zealand’s Law, New Zealand’s Legislation Design and Advisory Committee, http://www.ldac.org.nz/ [6] A.V. Dicey (1915) Introduction to the Study of the Law of the Constitution 8th ed, London: Macmillan and Co, P. Iv [7] Relx (2013) ‘The Rule of Law Equation’ LexisNexis, https://www.lexisnexis.com/en-us/rule-of-law/rule-of-law-equation.page [8] A.V. Dicey (1915) Introduction to the Study of the Law of the Constitution 8th ed, London: Macmillan and Co, P. 277 [9] P.J. Richardson (2009) Archbold 61sted, London: Sweet and Maxwell, P. 1802