The British Constitutional
System
Introduction
Early history
Qualifying the power of the monarchy
Path to democracy
Characteristics of the present system
Feudal Monarchy
• Legacy of Roman Britain e.g. towns and roads
• Invasion by Angles, Saxons and Vikings most
buildings destroyed and few stone buildings
• Scotland, Wales and Ireland separate nations e.g.
Hadrian’s wall.
• Norman Conquest in 1066. Doomsday Book [1085]
transformed the administrative state on feudal basis.
Inventory of settlements, formed the basis for
taxation. Beginning of the great Romanesque and
Gothic building. Feudal service established.
• Feudal system still the basis of property law
Origins of modern legal system
Henry II established many features of
common law, jury trial, legal uniformity by
judicial circuits.
New remedies available in his own courts and
abolition of trial by ordeal.
This common law is enforced throughout the
land by itinerant justices, professional
administrators of the law, all trained in one
school.
1215: Signing of Magna Carta
Magna Carta sealed by King John. This set the founding
principles for parliament and constitution. It defined some rights,
legal practices (fair trial) and 'good lordship' - Set out what
subjects could expect from their monarch and superiors.
It was forced on the monarch by the barons/lords
It placed real limitations on Royal Authority.
A committee of barons could overrule the King.
Due process of law is recognised from King downwards
Granted rights to London and other towns.
Origins of Parliament
• 1295 Model Parliament. Summoned by Edward I,
and generally regarded as the first representative
assembly - 2 Knights from each county, 2 Burgesses
from each borough, 2 citizens from each city.
Edward established control over Wales defeated the
Scots (William Wallace, Braveheart).
Scotland remained separate nation with its own
Parliament, legal system and educational system but
monarchy combined in 1603 and Parliaments
combined in 1707.
Henry VIII and the English Reformation
• Failure to lawfully divorce Catherine of Aragon
• Following excommunication by the Pope the Act of
Supremacy 1534 made him supreme head of the
Church of England;
• Nationalisation of the church was followed by the
dissolution of the monasteries, with ecclesiastical
income redirected for the benefit of the Crown.
• Religion became a central question for next two
hundred years. Act of Uniformity 1559 established
common prayer book and compulsory church
attendance.
Elizabeth I
• She had powerful ministers e.g. Burghley and
Walsingham but still ruled in the sense of being final
decision maker. She personally appointed military
commanders e.g. Lord Howard and Drake to defeat
Spanish Armada 1588.
• Parliament already important for legislation and
taxation but only sat for a total of 3 of the 45 years of
her reign. Legislation could be vetoed and bills often
failed to become laws because of lack of agreement
between: commons, lords and Queen.
The English Revolution and the Path to
Democracy
• Parliament had increased importance, especially for taxation
• Charles I tried to raise taxation without Parliament e.g. Ship
Money. This attempt to rule without summoning parliament
failed and led to national bankruptcy
• Imposition of new prayer book in Scotland sparked rebellion and
he eventually had to summon Parliament for the funds to raise
an army. When Parliament refused he attempted to arrest 5
members during a sitting of the House of Commons.
• Divine right of Kings called into question but he confronted
Parliament rather than being prepared to negotiate.
• Charles I executed in 1649.
• Oliver Cromwell becomes Lord Protector.
• The result of this clash is that Parliament has the
right to regulate its own proceedings. The Speaker
symbolically claims these privileges from the
monarch at each opening of Parliament.
• 1660 restoration of monarchy under Charles II
• James II once again attempted to undermine the
authority of Parliament with disastrous
consequences.
English Bill of Rights
• William III and Mary II offered the throne in 1689 but with strict
conditions attached:
• No army could be raised without parliamentary approval;
• Taxation required parliamentary approval;
• no special courts for political ends;
• freedom of petition guaranteed;
• free elections and annual parliaments;
• freedom of speech inside Parliament;
• protestant monarchy guaranteed, reinforced by Act of
Settlement 1701
Origins of Prime Ministerial Government
British Prime Minister emerged after the introduction
of the Hanoverian monarchy. George I spoke no
English and his son, George II had only limited
command of the language. The result was that the
affairs of government were increasingly conducted by
the king’s ministers. These ministers had to be
members of parliament, answerable to Parliament.
Most prominent among these was the First Lord of
the Treasury, referred to as Prime Minister. Sir
Robert Walpole recognised as first modern PM.
A Democratic Parliament?
• House of Lords represented the peers of the realm.
Mainly landowners with hereditary titles (barons,
viscounts, earls, dukes etc), plus the church
(archbishops and bishops).
• House of Commons elected but until 1832 the
distribution of seats was based on medieval centres
of population recognised by Royal Charter. Many
large cities and towns had no representation in
Parliament.
• No control over the conduct of elections. Bribery and
corruption common place and no secret ballot.
Electoral Reform
• 1832 Reform Act changed the voting qualification to the £10
level which virtually doubled the franchise
• 56 rotten and pocket boroughs were abolished and these seats
went to large cities and towns in midlands and north.
• 1867 Reform Act further reduced the voting qualification and
redistributed more seats
• 1872 Secret Ballot introduced
• 1883 Corrupt Practices Act and 1884 Reform Act regulated
elections further extended the franchise.
• 1918 all adult males and women over 30 given right to vote.
Commons versus Lords
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Beginning of modern politics led to representative political parties
Liberal Party and Labour Party with demands for popular policies e.g.
education, pensions, later universal housing. All paid for from taxation
on income and on property with the rich and landowners paying
relatively higher rates. Liberal government elected in 1906 with large
majority and popular mandate for change.
1909 People’s Budget blocked by conservative elements in the House
of Lords in breach of convention leading to political crisis. No
budget/finance bill meant no money to pay officials, army, police etc.
House of Commons resolved to clip the wings once and for all of the
House of Lords, but this was not possible without political support.
After a second general election in 1910 demonstrated support for the
Parliament Act, the King promised, if necessary, to create sufficient
new lords to ensure a majority in both houses. At this point the Lords
caved in and passed the Parliament Act.
Parliament Acts 1911 and 1949
• House of Lords could no longer veto legislation but
could delay it for 2 years, 1949 Act reduced this to
one year.
• House of Lords no power to veto or delay money
bills, the previous convention put in statutory form.
• Maximum time between elections reduced from 7 to 5
years.
• House of Lords still able to amend legislation
• Hereditary peers retained constitutional right to be
represented in Parliament until 1999. Now only 92
remain. Otherwise life peers.
Characteristics of the Constitution
• The historical constitution which developed incrementally
through each of the events (and many more) mentioned here.
Many of these aspects were enacted in statutory form.
• Heavy reliance on constitutional conventions, these are
established rules of constitutional practice that determine
conduct of the Queen, PM, ministers, civil servants and
Parliament.
• Constitutional monarchy - the powers of the King or Queen have
been qualified since Magna Carta. Now the role of the Queen is
governed mainly by conventions e.g. Royal Assent to legislation
guaranteed.
• Common law is a constitutional source. Where there is no other
authority judge made law sets precedents that taken together
form major parts of our law. Judges especially of the highest
courts play a crucial role interpreting and applying the law, but
there is no constitutional court.
The Diceyan Model
Professor Dicey in 1885 recognised: The fundamental principle
of the constitution is Parliamentary Sovereignty, the concept is
traced back to 1689. Parliament, comprising House of
Commons, House of Lords with Royal Assent, has absolute
power to pass or repeal any law. In theory no direct challenge is
possible and Parliament cannot bind its successors.
The rule of law is Dicey’s second principle, it means government
according to law and equality before the law, in essence that all
public bodies must act lawfully within their powers.
Implicit in this concept is a separation of power between the
executive branch and the courts who enforce the law.
What is ‘elective dictatorship’?
In light of the convention that the government must maintain its
Commons majority to survive, the party managers (whips) can put
enormous pressure on MPs of the ruling party to support the
government line or risk defeat in a vote of confidence (and, in
consequence, an election). In practice, this means that the government
can be sure to get its legislative programme enacted. The fact that MPs
of the governing party nearly always follow instructions from the whips
allows the PM, cabinet (party machine) to steamroller policy through
parliament. The concern is that its scrutinizing capacity may be
compromised as a result.
The parliamentary system in Italy (Article 94) also depends on the
government enjoying the confidence of parliament, but until recently
with less stability, because the government has tended to be formed
from a coalition of large parties and smaller parties or factions, any one
of which might break lose triggering a vote of confidence: e.g. fall of
Prodi government.
Queen and PM: Constitutional Monarchy
• Constitutional monarchy with Queen as head of state and in this
capacity she performs some of the same ceremonial functions
as the Italian President but has much less power, mainly
represents the nation.
• Many conventions have developed which illustrate the
emergence of democratic government;
• Royal assent to legislation guaranteed;
• Leader of winning party will be invited by the Queen to become
Prime Minister and form the government;
• On the opening of Parliament the Queen reads the Queen’s
speech declaring the policy objectives of her government but
this is always written by the Prime Minister.
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PM chooses cabinet and other ministers, Queen only rubber stamps
the appointments. Unlike in Italy ministers can be dismissed at any time
without qualification.
PM chairs cabinet, heads security service, co-ordinates role of
government from a department based at No10 Downing Street.
As head of the Civil Service PM can decide on the organisation of
government departments without the need for parliamentary approval
e.g. Ministry of Justice created in 2007 acquiring functions of Home
Office (prisons) and Department of Constitutional Affairs (courts,
judicial appointments and devolution).
PM decides when to call an election within statutory max of 5 years.
Characteristics of the Contemporary
Constitution
• EU law an important new source of law and increasingly
influential;
• Human Rights Act 1998 effectively incorporates European
Convention on Human Rights into domestic law as a surrogate
British Bill of Rights;
• Devolution of power to Scotland, Wales and Northern Ireland
with their own parliament or assembly;
• Higher judicial profile and greater separation of powers with the
introduction of a Supreme Court to replace the House of Lords
but no constitutional court;
• Freedom of Information Act and general trend towards
codification.