The British Constitution
Introduction
• A Constitution fulfils a number of functions in any
political system. It,
– Lays down the principles on which the State is based,
for example, is the State based on the liberal notion of
the rule of law.
– Defines how power should be divided within the
system for example between the executive, legislature
and the Judiciary and, in a federal system, between
national and regional government.
– Defines, and perhaps guarantees, the nature of the
relationship between the State and its citizens for
example what civil rights citizens may enjoy. These
rights may be clearly set out in a Bill of Rights
• The British system is virtually unique in
that the British Constitution is uncodified.
• This is only possible because Britain, even
with devolution, is a unitary state. If it was
a federal state it would require a codified
constitution in order to clearly define the
relationship between national and regional
levels of government.
• When a state has a codified constitution the
judiciary tends to be more important as it
acts as an arbiter in disputes over the
meaning of the constitution. An excellent
example of this is the USA.
The US Supreme Court
Sources of the British Constitution
• The sources of the British Constitution can be
found in six areas. They are:
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Statute Law
Common Law
Royal Prerogative
Conventions
Works of authority
The European Union
• Because of the way that it has developed the
British Constitution is often described as
evolutionary rather than revolutionary.
Principles of the British Constitution
John Locke
• Liberal democracy is at
the heart of the British
Constitution. In the
British system this
comprises of two key
principles:
– Parliamentary
sovereignty
– The rule of law
Parliamentary Sovereignty
• Parliamentary Sovereignty means that
Parliament is the only institution that can
make laws in the UK. These laws cannot be
overruled. This is in contrast to the USA.
• The principle of parliamentary sovereignty
is not found in any single piece of
legislation but has developed as a result of
Common Law.
• Parliamentary Sovereignty is subject to a number
of modifications in the 21st Century. These
include:
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The influence of the mass electorate
Referendums
The Party System
Political reality
Extra – parliamentary pressure
• Also parliamentary sovereignty has been affected
by Britain’s membership of international bodies,
especially the European Union. Up until 1998
this was most commonly seen in disputes over the
European Convention on Human Rights.
The European Parliament
The Rule of Law
• The rule of law is a concept that tries
to ensure that laws are applied fairly
to all citizens in a State.
• It has been suggested that in practice
the rule of law is made up of five
elements:
– Legal Equality
– The just law
– Legal certainty
– Innocent until proven guilty
– Independence of the Judiciary
Importance of the Rule of Law
• It is argued that the rule of law provides a mechanism
by which parliamentary sovereignty can be held in
check. This is usually written into codified
constitutions.
• However there have been criticisms of this theory.
These are based on the assumptions that governments
have become more cavalier in the way they use their
power in recent years.
• This is made worse because Britain is essentially run
by an elective dictatorship. The rule of law is not
very effective at checking this.
• It could be argued that the rule of law is an effective
check on the executive. This can be seen by the
increasing willingness of courts to call into question
the actions of government.
2 Models of the British
Constitution in Practice
• Two commonly used models of the
British Constitution are:
– The Liberal Model
– The Whitehall Model
• These centre around how power is
divided up in practice in the British
system.
The Liberal Model
• This model places Parliament (House of
Commons) as the most powerful institution in the
British system.
• Parliament has total control over legislation.
• Parliament has indirect control over government
and the administration and can hold ministers to
account.
• Parliament draws its power from the ‘sovereignty
of the people’.
Problems with the Liberal
Model
• Problems include:
• The Liberal model completely ignores the
importance of government in the British system.
Most legislation starts at Whitehall rather than
Westminster.
• There is no place for the Monarch in the Liberal
system. Ministers are appointed by the Crown and
government enjoys significant prerogative powers.
• The Liberal model also ignores the House of
Lords.
The Whitehall Model
• In the Whitehall model government has to
take account of the views of Parliament and
may even be removed if Parliament is
unhappy but the legislature does not have
the right to interfere with the day to day
running of the country.
• Governments act according to what they
perceive to be public interest rather than
because they are bound by Parliament.
Problems with the Whitehall
Model
• The Whitehall model takes no account of
the fact that governments are formed from
the majority party in Parliament.
• It ignores the importance of elections.
• It ignores the fact that Parliament provides a
valuable training ground for Ministers all of
whom are former backbenchers and future
members of the Opposition.