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CONSTITUTIONS JUMBLE – sort out the following features of the UK constitution so that they all match up. Example: Statute law – written law – Act of Parliament – Representation of the People Act 1928. The Nature of the UK Constitution.
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CONSTITUTIONS JUMBLE – sort out the following features of the UK constitution so that they all match up. Example: Statute law – written law – Act of Parliament – Representation of the People Act 1928
The Nature of the UK Constitution • The conservative traditions in the UK have created a flexible system; the constitution grows and develops, so, therefore cannot be a fixed set of ideas and principles. • As a result it displays several key features that distinguish it as particularly British. • Unwritten – we’ve already covered this!! • Unitary • Parliamentary Sovereignty • Partial Separation of Powers • Flexible • Rule of Law
Unitary • This refers to the concept of a united kingdom, but also to the principle that there is only one source of legality in the country: Parliament. • British constitutional theory stresses that all political and legal power resides with Parliament. Other bodies, such as the judiciary, local government or the Scottish Parliament, only exercise rule and authority with the permission of, and within the parameters set by, Parliament.
Parliamentary Sovereignty • This principle establishes the supremacy of Parliament over all other forms of institutional power. • It is based on the assumption that parliament can pass any legislation it wishes to, and that no parliament can bind its successors. This means that whatever legislation a parliament passes can be undone or overturned by a new incoming parliament. • This is because each parliament derives its legitimacy and strength from the electorate. • It is also assumed that each parliament enjoys the consent of the people it governs, and is therefore accountable to the voters; because of this, it is considered that there are adequate checks and balances within the British political system to prevent the emergence of a dangerously autocratic executive.
Partial Separation of Powers • In the United Kingdom the Prime Minister must be a Member of Parliament. Therefore, the British Prime Minister is both a member of the legislature, and a member of the executive. • Until October 2009, the highest Judges in the land were known as the “Law Lords” and sat within the House of Lords therefore, the Judiciary was also part of the Legislative branch of government. The creation of a separate UK Supreme Court has ended this however. • Until 2005 the Lord Chancellor was a member of the legislature with a seat in the House of Lords, a member of the executive with a seat in the government, and head of the judiciary in England and Wales.
Flexibility • In Britain, there are no special procedures for amending the constitution. Constitutional law in Britain is subject to exactly the same procedures as ordinary law. • Flexibility, however, can be seen as a source of both strength and weakness. • As a strength, the flexibility of the British constitution allows the political system to adapt and change to meet the demands of a modern dynamic world as is necessary. • For example, many laws regarding terrorism and the response to terrorism (Statute law) have been recent additions to the Constitution.
As a weakness, the system is always vulnerable to abuse by governments. This British system is largely based on trust and can be amended a majority vote in Parliament. An extreme example was when Prime Minister Edward Heath took Britain into the European Economic Community without even the agreement of Parliament. • It is a Prime Minister’s prerogative to use their power in this manner. This is why British politics is so dependent on trust: people trust the government to respect the rights and traditional freedoms and to carry out their functions in a lawful, disciplined manner. • There are no constitutional authorities to challenge their actions, other than Parliament itself which is, of course, under the control of the Prime Minister and the government.
The Rule of Law • According to Dicey, there are certain unwritten principles which transcend any law passed by a particular parliament. For example, British citizens are supposed to exercise what are known as ‘residual freedoms’. • This means that there are certain freedoms which naturally ‘reside’ with an individual, and upon which the onus lies with government to justify diluting or removing them, for example freedom of speech. The principle of the rule of law argues that it is, by definition, illegitimate for any authority to arbitrarily interfere with such freedoms. These freedoms reside with each individual by right. • The rule of law also requires that the makers of law, and the guardians of the law, are themselves bound by the law. Therefore, the government, police and judiciary are all under the same rules and regulations as the rest of society. The binding principle of the rule of law is that no-one in society is above the law.
Dicey argued that the key features of the “rule of law” were that: • No one can be punished without trial • No one is above the law and all people are subject to the same justice. • The general principles of the British constitution – such as residual freedoms – result from judge-made common law rather than from parliamentary statute or executive order. • In everyday practice this essentially means that: • Everyone is equal under the law; any one charged under the law must be entitled to a fair trial and cannot be imprisoned without due regard for the legal process. • The courts can hold government ministers, police officers and public officials accountable for their actions if they have acted outside the law. • The judiciary must be independent of parliament and free from political interference, in order to apply the law fairly. • Citizens can take the government to court if they believe they have been treated improperly.
Contemporary critics of the concept of the rule of law argue that it has been rendered virtually meaningless in modern Britain. They argue that because of the unwritten and flexible nature of the constitution, the rule of law can be easily ignored by central government and therefore the rights and liberties of the people are weakened. • Such critics claim that central government has sought, and seeks, to undermine the three basic tenets of Dicey’s code with an increase in measures such as: • the Official Secrets Act • the attempt to remove an individual’s right to trial by jury • the activities of the government and its intelligence services following the events on September 11th 2001 in the name of the government’s ‘war on terror,’ such as: • arresting people before they are guilty of committing an offence and imprisoning them without charge or trial or even access to a lawyer • Surveillance of ordinary citizens communications without their knowledge through agencies such as GCHQ.
Task A • Rank each of the features of the British Constitution in order of importance and give reasons for your decision. • The 1983 election manifesto of the Conservative Party stated that the rule of law is ‘the foundation of all our liberties’. How true is the statement? Explain in detail both your arguments for and against. • Unlike the American constitution there exists no diagram to explain the British Constitution: create one. Include features, sources and other pertinent information.
Task B Read the article regarding the GCHQ being and the application of the rule of law to authoritative bodies in the UK. Take notes from the article and answer the following questions: • Why could GCHQ and the IPT be considered to be in breach of the rule of law in previous years? • Does the decision of the courts suggest that the rule of law is still considered an important element of the constitution?
