A Guide to UK Constitutional Law: Introduction
A Basic Overview
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What are the Three Institutions of Government? (The Three Powers)
Constitutional law in general is not an easy subject to understand, unless you can place what you learn in the context of your own life. Definitions in law are also difficult to make as it will not define everything. However, it may be better not to define but to describe what a constitution might be. This is a good beginning for 'Constitutional Law' as a subject.
Many things have been said about what a constitution is. It is a source of power. It is a map that shows the functions of that power. It gives a country its political state and therefore life. This is because it sets out the functions that run the country and the rights that the citizens will enjoy.
Unlike the USA and many other countries around the world, the UK does not have one document in which the constitution is written. There is no single map or source of power. Yet, it has a constitution. It has a Constitutional Monarchy (because virtually all powers of the Crown are carried out by Ministers) and a Parliamentary Government. This is because of its evolutionary historical development where the power shifted from the Monarchy (king or queen rulers) to the Parliament and other functions. This happened gradually over time. Slowly, each of the functions were created to take over the functions of law-making, administration and implementing the law.
Due to the fact that constitutional law involves the running of a country it means power split into three: the making of laws, the administration of state and the implementing of those laws. This means that constitutional law involves politics as well as law. The party system and voters are an important part of the process. These processes are governed by law but also help the checks and balances that are necessary in the running of a state to give accountability of the those governing the State to the people. This means democracy and liberty. The appointed policymaker (executive) could use this power for his own benefit against the interests of the citizens. In democracies, elections are the primary mechanism for disciplining public officials. However, elections are not sufficient.
A study of the three functions of government in the UK shows that, because of its evoluntionary nature of the governmental system, the duties of the three institutions overlap. Due to the fact that the UK does not hold its constitution in one document, there is no supreme law. All laws that come out of Parliament are of equal status. This means that Parliament is supreme. The executive also has a large control of power as it arguably controls the day-to-day running of the country. Therefore, checks and balances in regard to the principle of the separation of powers in the UK realistically means an independent judiciary.
The head of the judiciary in the UK is the Lord Chancellor. His role seems to go against the separation of powers, as his role combines judicial, executive and legislative functions. This is because he is also a member of the Cabinet (executive) and Speaker of the the House of Lords (second chamber in Parliament - legislative). As a judge he is entitled to sit in the House of Lords when it acts as a final court of appeal. So, how independent is the judicary? An answer to this question requires the examining of the sources of the UK's Constitution.
In this guide, human rights are also mentioned as the new rules that have come in force in the UK have a constitutional impact on the workings of the judiciary.
Finally, reference is also made to another principle, the Rule of Law. For a system of government to be democratic and just, it has to be a system based on law. As the UK does not have a constitution that can be found in one document, this holds even more importance. The implementation of this principle is found in the workings of the courts. Simply put, "Be you ever so high, the law is above you".
© Ali Yýldýrým 2002
Difficulties & Double Meanings in Terminology
Firstly, before double meanings are mentioned, a word of note about the terms United Kingdom and Great Britain. Great Britain (or just Britain) is the island that is made up of England, Wales and Scotland. The United Kingdom is (mainly) the kingdom of Great Britain and the Northern part of the island of Ireland (Northern Ireland). However, British means anyone that comes from the United Kingdom.
Another difficulty the student will have with this subject is the double meanings that can be found in the terminology. The student will have to learn new words and the meanings to these words. What makes it confusing is sometimes that the same word may have two separate meanings. This will depend on the context in which it is used. For example:
"government"
The word "government" can sometimes be used to describe just the executive function, i.e the government meaning the Prime Minister and his Cabinet. However, the word "government" is used in constitutional law to mean all three functions in one (legislature, executive and judiciary) as they run the country together. For example the judiciary is the law-implementing arm of the government of the UK.
"conventions"
Conventions may mean those unwritten non-legal rules (or 'in-house' rules) that the governmental functions use to control themselves. The term 'convention' is also used for international agreements. Countries are not necessarily bound by them but can incoporate them into their law with legislation. For example, the European Convention on Human Rights was incorporated into UK domestic law with the passing of an Act of PArliament. Therefore this had a direct impact on the domestic law of the UK and, due to its nature, a constitutional impact on the country: see the Human Rights Act, 1998.
A constitution of a country is the important rules on which a country is controlled. It especially includes the rights of the citizens and is like a map of power, showing us which institutions and people have the right to use political power in that country. The practical aspect of a constitution is that it helps the smooth running of a country, and therefore gives it life.
What is a constitution made up of?
A constitution is made up of the rules and practices that give life to the make-up of the institutions of government in a state (country) and control the relationship between the individual and the state. Most states have a written constitution. This is a document that outlines the power of its institutions of government and rights of a citizen (so it is like a map).
Where can the Sources of the UK's Constitution be found?
Even though it has been said that the UK does not have a single document called the 'constitution' it does have sources of authority which give constitutional power to its governmental system and institutions. Therefore, the UK does have a constitution. It is a combination of legal rules (written) and non-legal rules (unwritten). What are these sources? The constitution of the UK consists partly of:
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Statutes (legal & written), to amendement them only another Act of parliament is needed (no speacial procedure is necessary as with written constitutions), but also
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to a very significant extent of common law rules (case law - legal & written: this includes both decisions made by judges when interpreting statutes and common law proper: these are rules that have been developed by the courts historically) and
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constitutional conventions (non-legal & unwritten)
Some STATUTES/ACTS OF PARLIAMENT THAT DEAL WITH CONSTITUTIONAL POWERS are:
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BILL OF RIGHTS 1689
Tax collected only with the consent of Parliament. This Act limited other powers of the Crown.
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ACT OF SETTLEMENT 1700/1701
Regulates the succession to the throne and guarantees the independence of the judiciary.
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PARLIAMENT ACTS 1911-49
This Act limits the legislative power of the House of Lords.
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EUROPEAN COMMUNITIES ACT 1972
This Act gives effect in the UK to European Community law and which creates IMPORTANCE (supremacy over domestic law).
This sets out the human rights set out in the European Treaty.
There is also the MAGNA CARTA 1215, this was one of the first documents in the world to set down rights for the individual.
Magna Carta was a charter granted by King John in 1215. It guaranteed rights against the abuse of Royal power. It came about as a result of the King's demands for excessive feudal dues and attacks on the Church's privileges. In 1213 Archbishop Langton proposed the drawing up of a charter to the barons. On 15th June 1215 John was forced to accept the charter at Runneymede (now in Surrey).
What are constitutional conventions?
They are non-legal rules or practices relating to the exercise of their functions by the Crown, government, Parliament and the judiciary that are not legally enforceable but are commonly followed as if they were.
What do they do?
They are non-legal rules that help control (and check and balance) the institutions in power. One of the most important is that the Crown must exercise its constitutional powers only in accordance with the advice of ministers who collectively command the support of a majority in the House of Commons. Another is the ministerial responsibility that ministers have to Parliament for the conduct of their departments. A third example is the collective responsibility held by the Cabinet (once a decision is reached by them all the ministers in the Cabinet should support it).
Why are they followed and how important are they?
There is no single reason why conventions are observed. The basic reason for obeying conventions is to ensure that the machinery of government should function smoothly; conventions by their nature are not codified into law and therefore can be modified informally to meet changing circumstances.
What are the Three Institutions of Government? (The Three Powers)
What are institutions?
Institutions are organizations or establishments founded for a specific purpose. Institutions of government are those establishments (or places) that have been created to govern (rule) the country, such as the House of Commons and the Parliament in the UK .
What are the three main institutions of power in a constitution?
They are the legislative, executive and judiciary.
What are their functions?
Legislature = the law making branch of government
Executive = the administrative branch of government; it makes laws by way of delegated legislation and drafts bills.
Judiciary = the law enforcing branch of government
What is the legislative in the UK?
This is the institution that legislates, that makes the law. So, we can call this organ of power the ‘law-makers’. Their power is that they make the rules that controls the people in society. The institution or organ of power in the UK that is the legislative institution is called the Queen in Parliament. This is a place where the Ministers of Parliament meet up to pass certain Bills into Acts of Parliament in the 'name' of the Monarch. It is made up of the Queen and places called the House of Commons and the House of Lords.
What is the executive in the UK?
This is the organ that executes, that administrates, that carries out the law that is passed by the legislative. In the UK, this is the institution that is usually called the ‘government’, which is made up of the office of Prime Minister (PM) (created by convention) and the Cabinet. The Cabinet is a group of Ministers including the PM. Again the Monarchy plays a role here. The government is known as 'Her Majesty's Government'.
The British Monarchy and Reform of the British Monarchy
The UK has a constitutional monarchy which means that the monarch's powers are largely exercised by the elected government. The Queen is Head of State which means she symbolizes the ultimate sovereignty of the state and represents the UK in an official capacity when foreign Heads of state visit the country.
Till Charles I, monarchs believed they ruled by Divine Right rather than the consent of the people; the civil war in England and the execution of Charles I in Whitehall in 1649 led ultimately to the acceptance of the superiority of Parliament; and this was formalised in the 1689 Bill of Rights, accepted by William and Mary. This said that the king could not suspend laws or tax without Parliament's approval.
The development of political parties, and the emergence of the 'prime minister' figure (Walpole) under George I, combined with the spread of the franchise under the 1832 Great Reform Act led to the constitutional monarchy in the UK today.
Along with changes brought about by statute, changes in the power of the monarch have arisen through non-legal sources too. Conventions have expanded the legal rules. As a result of the convention that the monarch should not become politically involved and should not be seen to favour any one political party, the monarch (the Queen today) has been relieved of any real responsibility as to the choice of Prime Minister. The various political parties have now clearly defined rules for the election of a leader.
A latest possible development signalling the diminishing power of the Monarchy is in the prerogative powers. These will no longer be called Royal prerogatives in the new development taking place but will be known as Parliamentary prerogatives, as they effectively are today. What are prerogatives? Power used by the three functions are generally by virtue of authority granted by law (or if a written constitution by the constitution). However, in the UK, certain powers of the State come from prerogative powers. These are powers that have their origins in common law, they were originally powers, rights and immunities exercised by the Crown or Monarch (in history). Such powers as those that include making declarations of war and peace. However, these can be overtaken and some have been, by statute.
Thus, practically the Monarchy in the UK has become a figurehead and a tradition that remains in name and title of procedure alone.
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