UNIT 1 – CONSTITUTION
P. KAPITANIAK
PREAMBLE
This course aims at introducing you to the political institutions and legal system
of the British people. Before we start, we would like to ask you whether you understand
the different names the British use for their country: the United Kingdom, Britain, Great
Britain, England, the British Isles. What do all these different names indicate?
• The United Kingdom (the U.K.) means the same as Britain.
• Britain comprises Great-Britain and Northern Ireland.
• Great Britain comprises England, Wales and Scotland.
For many people, England is the leading country. The capital of the U.K., London,
is in England. The Queen, the Government and Parliament work in London. English is
the official language spoken in England.
The geographical term 'British Isles' is used for all the islands composing the
archipelago (Great Britain, Ireland and the smaller islands).
To sum up, Britain comprises Great Britain (England, Wales and Scotland) and
Northern Ireland, and is a member state of the European Union. Its full name is: the
United Kingdom of Great Britain and Northern Ireland.
THE CONSTITUTION AND CONSTITUTIONAL MONARCHY
The United Kingdom of Great Britain is divided into four countries with three
distinct jurisdictions, each having its own court system and legal profession.
1+2. England and Wales have a common legislature and court system. English
lawyers can practise in courts located in Wales and vice versa.
3. Scotland with a devolved legislature on some matters and a separate court
system and judiciary. Scots law is technically as foreign to English law as the law of
France.
4. Northern Ireland with a devolved legislature on some matters and a separate
court system and judiciary closely modelled on the English system. English lawyers do
not practise in Northern Ireland and vice versa.
These pages are written from an English viewpoint and so we will deal mainly
with England and Wales.
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UNIT 1 – CONSTITUTION
P. KAPITANIAK
Like all member countries of the European Union, the United Kingdom is a
democracy, but its major feature is that it is one of the oldest constitutional monarchies
in the world.
This means that the United Kingdom is a monarchy... with a constitution. The
concept dates back to the 17th century when the Stuart kings stepped outside the limits
of their power. The English monarchy was absolute then. There had been parliaments in
the kingdom since 1295, but they had a roughly consultative function. Gradually they
demanded more power. There was a Civil War from 1642 to 1648 between partisans of
King Charles I and those of Parliament, at the end of which the king was beheaded.
Those familiar with Alexandre Dumas’s Vingt ans après may remember this tragic
episode. A troubled period followed after which another king, James II, was forced to
abdicate in 1688.
When James’s daughter, Mary, and her husband, William of Orange were invited
to take the throne, Parliament imposed limits on their power in the Bill of Rights of
1689 which was the first constitutional rule after the Magna Carta (1215). A
constitutional monarchy replaced the absolute monarchy. For the first time, the
supremacy of Parliament was recognized and the nation acquired the right to change a
monarch it could no longer bear for a better one. Thenceforth, Parliament had much
more power than the sovereign and became the principal source of authority in the
country.
Gradually, rules have been made in order to refine, amend, correct the way the
country is to be governed. The result is that people talk about the British Constitution
because there are constitutional rules, but there is no single written document you
could refer to as such. In contrast with most other countries, it is not possible to point to
one text and say “this is our constitution”, nor is there any doctrine of the supremacy of
the constitution over other legislation as in the United States, nor any constitutional
court, nor any formal doctrine of separation of powers.
I. THE CONSTITUTION
There are five different elements which compose the constitution of the United
Kingdom. Since they are not codified in one single document, as in most countries, they
must be consulted separately.
1. Parliamentary legislation, also called “Statute Law”
Traditionally, the most important source of the constitution comes from
Parliament itself, when it legislates on a matter concerning political organization or the
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UNIT 1 – CONSTITUTION
P. KAPITANIAK
guarantees of the rights and freedoms of individuals. Among the most significant Acts of
Parliament, also called statutes, there are:
- the Magna Carta (1215) providing the first charter of individual liberties,
including the right of trial by jury, habeas corpus (the right for a person to know the
charge brought against him) and the principle of no taxation without representation
- the Bill of Rights (1689) and the Act of Settlement (1701) which limit the
power of the monarchy
- the Reform Bill (1832) and the Parliament Acts of 1911 and 1949, modifying
the power and structure of Parliament
- the European Community Act of 1972 and the Single European Act of 1987
making Britain a member of the European Union.
Many other laws organize the distribution and exercise of power among the
organs of the state.
The body of all the Acts of Parliament passed in the British Parliament is called
Statute Law. Statute Law is thus that part of English law which is composed of
legislation, in other words, all the laws or all the statutes.
2. Constitutional matters decided in a court of law by judges.
When judges make decisions in court their decisions are called judgments or
pronouncements. Their decisions have the weight of law which will be explained in
more detail later on. These judicial pronouncements are part of an immense body of law
called “Case Law” and sometimes “Common Law”. Certain basic principles are derived
from these decisions such as freedom of expression, freedom of assembly and of
association.
3. E.U. Law
Regulations of the European Union create individual rights and duties directly
enforceable in the British Courts. European directives are not directly applicable, but
Parliament is required to implement them through national legislation.
The constitutional provisions, found in these sources, all have the force of law
and consequently judges recognise and enforce them in court. There are two other
sources of British constitutional law, but they concern the organisation and workings of
government more than the lives of individual citizens.
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UNIT 1 – CONSTITUTION
4. Parliamentary Privilege
P. KAPITANIAK
This is the body of law that relates to the operation of Parliament and the status
of its members. The most important rule concerns freedom of speech in Parliament.
What is said during debates cannot be questioned in any court or place outside. Another
important privilege is the right of the House of Commons to control its composition and
proceedings. The House enforces these rules itself. It can discipline its own members
and take measures in cases of serious breaches of Parliamentary Privilege.
5. Constitutional Conventions
This fifth source of constitutional law is made of conventions which are
traditions, or customs, followed over generations; they help organize how government
operates. These rules are not written in any formal document, and some are not written
down at all. Judges cannot enforce them. However, these conventions are respected by
everybody although they are not drafted in any specific document. The most wellknown conventions are:
- the convention that Parliament must meet at least once a year
- the convention that the sovereign does not attend Cabinet meetings
- the convention that ministers who lose the confidence of the House of
Commons on a major issue must resign
- the convention that the Queen does not refuse to give her Royal Assent to a law
which has been passed by Parliament (The Royal Assent is the monarch’s signature
symbolizing approval of a law)
- the convention that the leader of the party which has won the general elections
in the House of Commons automatically becomes the Prime Minister
- the principle of Parliamentary Supremacy
- the principle of government responsibility to Parliament. This means that
ministers in the Government are collectively responsible to Parliament for their actions.
It is surprising to notice that of all the constitutional rules, it is the conventions
which are the most respected. These conventions are based on trust and mutual respect,
and it is understandable that they make it easier to deal with some major issues and
avoid potential problems. Since these rules are not formally recorded anywhere, they
are not entrenched and can be amended or changed very easily by Parliament.
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UNIT 1 – CONSTITUTION
P. KAPITANIAK
Judges, lawyers, and law professors also contribute to the body of legal theory
known as jurisprudence. Two constitutional experts, Walter Bageot and A.V. Dicey,
also contributed to the sources of British constitutional law. They emphasized two basic
principles of the British Constitution: The Supremacy of Parliament and the Rule of
Law. We are already familiar with the concept of parliamentary supremacy which will
be further developed below. The Rule of Law establishes the absolute predominance of
regular law, so that the government has no arbitrary authority over any citizen.
Everybody, including every official, is subject to the ordinary law administered by the
ordinary courts. A citizen’s personal freedoms are formulated and protected by the
ordinary law rather than by abstract constitutional declarations. This will be developed
in more detail in the chapters devoted to English law.
In order to come to terms with European criteria, Tony Blair’s Government
launched a series of constitutional reforms which aimed at overhauling the British
political institutions. One of the reforms proposed was to draft a written constitution
but the question remains in debate and nothing concrete has yet been done about it.
II. THE MONARCHY
The role of the Monarch is organized by numerous conventions and may be
conveniently described by reference to three short aphorisms inspired by constitutional
expert, Walter Bagehot.
1. “The Monarch reigns but does not rule”.
Queen Elizabeth II is head of state and, in theory, presides over the legislature,
the judiciary and the executive. Governing the country is carried out in her name.
However, by convention, the Monarch may only exercise the powers vested in the
Crown on the advice of the Ministers. Thus, the Queen’s speech to Parliament each
session, setting out the legislative programme of what the Queen refers to as “My
Government”, is in fact written by the Prime Minister. The Queen’s appointment of a
judge or an army officer results from a decision taken by a ministry. Each Act of
Parliament must receive the Royal Assent, but by convention, the Queen cannot refuse
to sign a bill. Her duties are mostly ceremonial. She confers titles in gratitude for
services rendered to the country. The queen makes state visits to other countries, acting
as the representative of the United Kingdom. However, in practical terms, she is
powerless.
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UNIT 1 – CONSTITUTION
2. “The Monarch is above politics”
P. KAPITANIAK
It is a convention that the Monarch does not publicly express partisan political
views. This extends to all members of the Royal Family.
3. “The Monarch has the right to advise, to warn and to encourage”
The Queen has many sources of information on the running of her country. She
sees all dispatches concerning foreign affairs and all important state papers dealing
with domestic questions. She receives daily reports on parliamentary proceedings and
the Prime Minister visits her every week after the Cabinet meeting. It is at this moment
that she may exert a certain influence over Government policy. Since she became queen
in 1952, Queen Elisabeth has met regularly with all the prime ministers. She is thus a
repository of information and experience on matters of state.
In reality, the law does not forbid the monarch from doing anything, but by
convention she does not take any political initiative on her own.
The Act of Settlement of 1701 has always regulated succession to the throne
and prohibits any Catholic king or queen from reigning. One of the rules under this Act
is that the successor to the throne must be the monarch’s son, and if the Monarch has no
sons, the oldest daughter will succeed to the throne. This rule called ‘male
primogeniture’ was recently abrogated by the Succession to the Crown Act of 2013
which also modified the ban on Catholicism: marrying a Roman Catholic no longer
disqualifies a person from succeeding to the Crown, though the monarch still has to be a
Protestant. The Act was passed by Parliament before Prince William's son was born.
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