The British constitution for dummies
I’m a massive nerd, nothing gets my juices flowing more than some good old fashioned Constitutional law. For that reason, I have been somewhat dismayed recently. Seeing people, so frequently, reel off fundamentally incorrect statements without even a second thought has become increasingly hard to bear. So, I have decided to attempt to lay out, in as concise and simple a manner as possible, the constitutional arrangements governing the governing of the UK.
Unwritten doesn’t mean unimportant
To an outsider, looking in, it may appear that the UK doesn’t have a constitution, at least not in the conventional sense. When most people speak of a constitution, they often mean it in the sense of a single document which sets out the fundamental rights and responsibilities of citizens and state. A good example of this being the constitution of the United States of America, in the USA it is not uncommon to hear of laws being struck down by the supreme court when they run contrary to the constitution.
In fact, the reality is quite the contrary, the UK is one of only three ‘modern states’ not to have adopted a written constitution. The other two states being Israel and New Zealand. However, the uncodified (despite the fact that many refer to the constitution as being unwritten the majority of it is written down, its simply not within one cohesive document and thus is better described as uncodified than unwritten) status of the UK constitution does not mean it does not exist. indeed, the UK has one of the most wide and far reaching constitutions in the world; encompassing documents going back back as far as the Magna Carta of 1215.
The Magna Carta represents the first real limitations upon the power of the Monarch, in principle it established that the Monarch had to rule under what we would now term the rule of law. In this way, it represents the foundations for the operation of our government under the law. Therefore, the Magna Carta can be seen as the first steps on the path toward democracy, even now, by its very nature, our constitution is being developed and rewritten constantly. Thus, when people say ‘our democracy is still being built’, they aren’t far from the truth.
The next major development, for our purposes, came in The Bill of Rights of 1689 which established, what has come to be seen as, the central principle of UK constitutional law (though recently this has become more debatable in academic circles, we will be ignoring this fact in the interest of simplicity), namely the principle of parliamentary sovereignty.The Bill of Rights lays down that the crown cannot suspend or dispense with the law (marking the rule of law as a further central element of our constitutional law) and that due process must be observed in criminal trials (this is a nod to the separation of powers, which lays out how political power must be divided among different branches of the state). Further, the bill of rights makes clear that parliament is the supreme power, above even the crown. Much as the Earl of Shaftesbury put it;
‘The Parliament of England is that supreme and absolute power, which gives life and motion to the English government’ (The Earl of Shaftesbury, 1689.)
Anyone wishing to learn more about how our system transitioned, from a monarchy governed by the ‘divine right of kings’ to a constitutional monarchy where parliament is supreme, should look to the history book and in-particular look to the events of the Glorious revolution.
Wait so what is parliamentary sovereignty?
As I’ve already stated, parliamentary Sovereignty is the central principle of our constitutional system. It really is as simple as the name states, in our system parliament, not the Queen, not the Government and not the Courts are the supreme law makers. Parliament can make or unmake any law, no parliament can bind a future parliament and courts cannot strike down an act of parliament. The crucial points to take and reiterate here is that no parliament can bind a future parliament and parliament can make or unmake any law, taking this in mind I wish to address the first incorrect claim people make.
‘we can’t have a snap general election because of the Fixed Term Parliament Act 2011.’
The above claim is fundamentally incorrect, while its probable due to parliamentary sovereignty, that the act does curtail the Prerogative power (I will explain these shortly) which previously enabled the monarch, on advice of the prime minister (or following a vote of no confidence) to dissolve parliament. The principle of parliamentary sovereignty and particularly the principle that no parliament can bind a future parliament means that the act cannot, in fact, bind parliament if it chose to dissolve itself, provided it undertakes certain steps first. Thus, despite the fact that according to the Fixed term parliament Act 2011 parliament needs a two thirds majority to dissolve itself, a bare majority of 326 (in reality this is 322 due to Sinn Fein and the speaker) could dissolve parliament. This could be done, either by repealing the Fixed term parliaments act thus returning the power to dissolve parliament to the crown, or by passing an act/ amending the existing act which changes the terms of parliaments. In effect, the majority demanded in the Fixed Term Parliaments Act 2011 is not worth the paper it is written on and there would be no barrier to calling a snap general election for any government which is capable of achieving a majority.
‘Human rights laws and international bodies stop the democratically elected government from carrying out the will of the people.’
Again, this claim is fundamentally incorrect, as we have already established parliament is the supreme law making body in the UK. In line with this, Courts cannot strike down acts of parliament, they can only interpret them. In some other countries, particularly the USA, legislation contrary to the constitution can be struck down by the courts for that reason. for example, a ban on gun ownership could be struck down for being in breach of the second amendment to the constitution (the right to bear arms). In the UK this does not happen, ever.
The human rights act 1998 gives UK judges a duty to read statues in conjunction with the UK’s responsibilities under the European convention on human rights and fundamental freedoms or to issue a declaration of incompatibility where this is not possible. Example of this can be seen in the case of Ghidan v Godin- Mendoza [2004] UKHL 30 where judges were forced to read the Rent Act 1977 in light of article 14 (non-discrimination) in conjunction with article 8 (private life) of the universal declaration of Human Rights and Fundamental Freedoms. Through doing this, they extended the Rent Act to allow same-sex couples living ‘as married’ to succeed to a statutory tenancy. However, this duty is strictly ‘where possible’ if it is not possible all the courts may do is issue a declaration of incompatibility; this is, in effect, a declaration that the UK is not complying with its obligations under the European Convention on Human Rights. The operative word here is declaration, it has absolutely no binding force. Similarly, the decisions European court of Human rights sitting in Strasbourg have NO ENFORCEMENT MECHANISM. Therefore, outside of the imaginations of Daily Mail contributors (or more worryingly conservative MP’s including our new Prime Minister), there are no limitations placed upon the powers of democratically elected officials by our human rights obligations.
In case it wasn’t clear, human rights obligations place no limitations upon our parliament. Parliament can still make or unmake any law, so long as they are clear about it. To flesh this point out, I shall use an example, I will point out that while this is a legal example it would quite evidently be politically impossible, and rightly so;
Parliament have passed a new act, it has passed through both houses of parliament and gained royal assent, it is now law in the United Kingdom;
-The Blue Eyed Babies Act 2016
S.4. Any baby born with blue eyes will be subject to destruction at the first possible opportunity.
the concept of the Blue Eyed Babies Act is borrowed from — LESLIE STEPHEN, The Science of Ethics, p. 145 (1882).
This act is very obviously in breach of the UK’s obligations under international human rights law. It is a blatant breach of article 14 (non-discrimination) in conjunction with article 3 (right to life) of the European convention on Human rights. However, the act is clear and unambiguous. There is obviously no way in which this can be read in conjunction with the UK’s obligations. Therefore, all that can be done is the issuing of a declaration of incompatibility. Should parliament choose to ignore that declaration, there is no legal barrier to this act being enforced. Even an act this repellent and obviously contrary to human rights law can be valid law in the United Kingdom, so long as parliament is clear and unambiguous about their intentions.
While I’m on the subject of human rights obligations, lets come to the ‘British bill of rights’. To be frank, repealing the human rights act 1998 and replacing it with a ‘British bill of rights’ would be completely and utterly pointless. It would achieve nothing but to waste, vital, parliamentary time while increasing litigation costs for the state. At present the Human Rights Act 1998 allows individuals to bring claims under the European Convention on Human rights before domestic courts. If this were repealed, individuals will still be able to bring ECHR claims. However, they will have to bring them in Strasbourg, having ‘exhausted all domestic remedies’. This will add additional stages of court proceedings and thus increase the costs of litigation to the UK treasury. Further, and somewhat ironically, it will take the final call on many human rights issues away from the UK supreme Court and to Strasbourg (the exact complaint most make against the Human Rights Act). In all honesty, anyone calling for the repeal of the Human Rights act has absolutely no idea what they are talking about.
If Parliament is sovereign, why do we hear so much about the government?
During election time the focus is rarely actually on parliament, instead we focus on who might be in government. This leads to a great deal of confusion regarding how our governments are actually formed. In recent years the media have only served to worsen that confusion, not least through the Leadership debates we have seen televised. These debates have lead to a great deal of confusion over what we actually vote for come election day. This confusion has not been helped by the increasingly presidential style of government we have seen since the Blair administration.
If you recall, we previously noted the idea of the separation of powers. Under the separation of powers political power is vested in 3 separate organs, the legislative, the executive and the judiciary. In the United Kingdom the Government take the role of the executive, at least if you wish it explained in the simplest possible way. The powers of the executive are in fact vested in the crown. It is convention and convention alone which mandates the monarch to follow the advise of the government. The constitutional basis for the UK government is derived from the Privy Council, the privy council are advisers to the crown. However, in the modern day, due to a constitutional convention, it is the Queens duty to follow their advice. The executive committee of the privy council are the cabinet, it is as members of the cabinet that the Prime Minister and government ministers sit. To be absolutely clear, there is no binding legal need for members of the cabinet to be members of parliament at all (with the possible exception of the chancellor).
‘so you’re saying we don’t have any say in who the government are at all?’
Not quite, the time has come to properly explain the idea of constitutional conventions. Constitutional conventions are exactly as the name suggests, they are practices which have been repeated to the extent that they have attained the status of a convention. The UK constitution, in its modern iteration, is wholly dependent upon them. Simply put, without constitutional conventions the entire Westminster system of government would be unworkable. Despite their merely conventional nature, constitutional conventions form a central party of our constitution, while they aren’t exactly legally binding, there is immense systematic and political pressure to adhere to them.
The most well know of the constitutional conventions relates to the appointment of the Prime Minister, by constitutional convention the Queen shall appoint the leader of the largest parliamentary party Prime Minister (so long as they are capable of attaining a majority in the house of commons or otherwise put ‘ commanding the confidence of the house’). To be absolutely clear, there is no binding obligation on the Queen for any particular person to be appointed Prime Minister. Technically the Queen could appoint you or I, if she so wished. In fact, historically it was more common for members of the (unelected) House of Lords to serve as Prime Minister and between October 23rd 1963 and November 7th 1963 Alec Douglas- Home, otherwise known as Baron Home of the Hirsel, held the office of Prime Minister while being a member of neither the House of Commons or the House of Lords.
‘So Theresa May is no less elected than any other Prime Minister in history?’
Bingo. There are currently reasons to call for an election, having an unelected Prime Minister is not one of them.
Wait so why is the government so Important again?
So,we have clarified how government’s come to be, and how it is only conventionally linked to parliament. What we have not covered is why governments are important, or rather why government has so much power when we consider that parliament is sovereign.
The first reason is that the government in their positions of cabinet hold powers granted under the royal prerogative. There are certain powers which the crown is able to exercise, such as the power to sign up to international treaties, that do not need the approval of parliament, these are called prerogative powers. by constitutional convention the Queen must exercise these powers on the advice of Government. Thus, the government and more specifically the secretaries of state are crucial because they are able to utilize the powers of the crown in order to undertake a number of actions outside of parliament. Indeed in recent times more and more of these powers are being specifically appropriated by the Prime Minister themselves leading to a more presidential style of Government.
The Royal prerogative is famously hard to define, insofar as its roots, the basis of exactly why the crown holds this power are elusive. My preferred explanation is that offered by Professor A.V. Dicey, namely;
The prerogative appears to be historically and as a matter of fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the crown. The prerogative is the name of the remaining portion of the Crown’s original authority … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of the prerogative.
(A.V. Dicey, quoted in, Alex Carroll, Constitutional and Administrative Law (4th ed. 2007), p. 246
At base, what the prerogative is a set of actions which have been leftover from the days of absolute monarchy. A great deal of the areas covered by the prerogative in the modern days are those issues that need immediate and fast action, and thus could be argued to lie within areas which are not appropriate to parliamentary votes. For example, the prerogative covers areas such as defense and foreign affairs (though it is worth noting, that with Military action in Iraq and then Syria being preceded by a parliamentary vote, there increasingly seems to be a conventional need to go to parliament before taking military action). The point is, the importance of the government lies in their ability to undertake certain actions without the need to go to parliament, this is achieved via their use of the Royal prerogative.
Secondly, in our attempts to make the Government accountable to the electorate (the convention relating to the appointment of the prime minister) we have in fact inflated the power of the government. This is because, in what is quite the affront to the separation of powers, the government now sits atop the house of commons. We have created what Lord Hailsham once termed the ‘elective dictatorship’. What is meant by this is, that due to the government being formed by the largest party in parliament, we have a situation where any government can pass any act, which is not so intolerable as to make members of their own party rebel. In this way attempts to ensure the accountability of the government within the Westminster system in fact result in an erosion of the intended checks and balances upon the actions of the executive.
Let’s wrap this up
anyway, thank you for reading. I hope I have made this easy to understand, I really did try to , in attempting to simplify things I have sacrificed some detail but i hope this has contributed to making this easier to understand. Further, there are areas where I have simplified things to a point where they have ceased to be entirely accurate. However, that was again in the interests of simplicity and making this easy to understand. If people liked the sort of myth buster style, can you please let me know? If it has been popular I might look into doing this more often on other issues of constitutional and administrative law which are commonly misunderstood.
