The UK constitution

What is a constitution 

• A political settlement 

• Constitutional documents: 

• Magna Carta 

• Bill of Rights 1689

• Act of Union 1707 

• Scotland Act 1998 

• Human Rights Act 1998 

• The law about the law

• Not originally used to refer to one specific document 

• Narrow and expansive meanings large “C” and small “c” 

• Constitutions all made differently 

• Democracy was certainly present before the American and French revolutions 

• Simon de Montfort:

• January Parliament 1265: first to include representatives from the shires, cities, and boroughs, as well as feudal barons 

• This impacted our ideas of “representation” and “participation” in government 

• However it hardly opened up Britain's voting population 

• General trend throughout the world is codification 

• Only three jurisdictions w/o a written constitution: UK, Israel and NZ 

Characteristics of written constitutions 

• Define the relationship between citizens and the state 

• Articulate the structure of the state and the operation of governance 

• Entrench widely held, fundamental values and rights for citizens (ensures that this text is more difficult to change than ordinary law) 

• A binding / legitimising (and symbolic?) force on society 

• Provides norms / legal conditions for the public use of power; expresses the form and content of state power 

Constitutionalism 

• The relationship b/t state power, law and democracy 

• Often associated with the existence of a written constitution; but not essential 

• Connection to rule of law 

Flexible versus rigid constitutions 

• American constitutional amendments 

• Proposals → ⅔ of Congress or State legislatures 

• Ratification → ¾ of Congress and State legislatures 

• Over 11,000 amendments proposed, but only 27 ratified 

• No major constitutional amendment since 1971 (minor 1992 amendment) 

• Sometimes too rigid can be problematic 

• But some are more flexible 

• Germany: 55 amendments in first 60 years 

• France: 23 amendments in the first 50 years 

• Norway: 316 amendments b/t 1814 & 2014 

The UK basics 

• Is a constitutional monarchy (or parliamentary democracy) 

• Is a unitary state, but with devolved entities 

• Operates on a parliamentary system of government 

Historical development of the UK

• Wales 

• 1536 uniting England and Wales through Act of Parliament 

• 20th Century developments (Sec of state & Welsh office - 1964/65) 

• Scotland 

• Maintained independence until 1707 (Treaty of Union) 

• Sec of State (1885); Scottish Office (1945) 

• Legislation for Scotland had to compete in leg programme 

• Northern Ireland 

• 1800 legislative union between England and Ireland 

• 1920 Government of Ireland Act / Anglo Irish Treaty in 1921 

• 1920-72 form of devolution for NI (direct rule resumed in 1972) 

• 1998 Belfast (Good Friday) Agreement 

Attempts to codify the UK constitution 

• 1653: Oliver Cromwell’s ‘Instrument of Government’ and Humble Petition and Advice 

• 1707: Act of Union with Scotland → while ‘clearly of momentous impact’, has not been treated as constitution 

• 1991: Tony Benn’s → Commonwealth of Britain Bill; Institute of Public Policy Research → Written Constitution for the UK 

• 2014 Scottish Referendum: Independence Bill 

• 2015: Magna Carta 800th Anniversary 

Characteristics of the unwritten constitution 

• Use of ‘unwritten’ and ‘uncodified’ 

• Lack of entrenchment - Dicey: ‘flat’ nature of law in the UK - No clear dividing line b/t what is constitutional and what isn’t 

• No fixed procedure for legislation of constitutional importance 

• UK Lords Constitution Committee definition (2001): ‘the set of laws, rules, and practices that create the basic institutions of the state, and its components and related parts, and stipulate the powers of those institutions and their relationship between different institutions and between those institutions and the individual’ 

Key Institutions of the UK Constitution 

Parliament 

• House of Commons 

• 650 MPs

• Currently most diverse Parliament ever 

• Often initiates legislation 

• House of Lords 

• Currently has 804 members 

• Includes Bishops (25), Crossbenchers (184) and also Hereditary Peers (92) 

• Trails Commons in terms of diversity 

Government 

The Cabinet 

• ‘Ultimate decision-making body of Government’ 

• Composition of Cabinet

• Currently 22 members (incl PM) + 4 attending 

• No statute regulates Cabinet composition; but # of salaried Cabinet posts is limited by statute (22) 

• 1960s all major depts placed under supervision of Cabinet Minister 

• Cabinet committees 

• Increase in scale of gov’t not matched by increase in Cabinet 

• Membership of some committees as large as Cabinet itself 

• Cabinet Secretary 

• Est in 1917 to help the committees (and Gov’t) run efficiently 

• Can be extremely powerful 

• What issues does the Cabinet determine?

• The Government's legislative priorities 

• Decisions to take military action 

• Constitutional matters 

• International and European matters 

• National emergencies 

The Prime Minister’s role in Cabinet 

• Make all appointments to material office 

• Controls the machinery of the central government (incl. Govt depts) 

• Able to determine present priorities of his/her gov’t from No 10 

• Collective responsibility reinforces powers of PM 

• PM has more opportunities to present and defend Gov’t policies 

Ministers and Departments 

• Ministerial offices 

• Some offices have a longer history than the PM 

• Government departments

• Branches staffed by civil service and paid by Exchequer funds 

• Ministers of Crown Act 1975 

• Thus new departments are easily created or renamed 

• Ministers of Crown 

• ‘The holder of any office in HM Government in the UK’

• Only a convention that ministers come from Commons and Lords 

• Grades of ministerial appointment 

Courts 

Major roles 

• Adjudicating legal disputes 

• Interpreting legislation 

• Hear challenges to legality of government action via judicial review 

• Judicial Independence 

• Security of tenure → Act of Settlement 1700 → Senior Act 1981 

• Method of appointment → Constitutional Reform Act 2005 → Judicial Appointments Commission 

• Physical independence from the legislature → Constitutional Reform Act 2005 → UK SUpreme Court (UKSC)

• Right to have case dealt with in an unbiased manner (connects to Art 6 of ECHR → Right to a fair trial) 

Crown 

• Title to the Crown 

• Power of Parl to regulate succession 

• Succession to the Crown Act 2013 

• Duties of Monarch 

• Many formal acts of government requires the Queen’s participation 

• Monarch is bound to act on the advice of the PM (or other ministers) 

• Bagehot on the Monarchy 

• Monarchy part of ‘dignified’ aspects of the UK constitution 

• Considered the use of the Monarch ‘incalculable’ and a method of ‘understanding’ by the wider citizenry 

• Believes that is ‘protects’ the constitution 

• The power of the Monarchy lies (partially) in its mystery 

Sources of the UK Constitution 

1. Legislation 

Acts of Parliament 

• Supreme source of legal rules 

• Can change the constitution through norma;l legislation 

Statutes with constitutional significance 

• Magna Carta 1215 

• Petition of Right 1628 

• Bill of Rights and Claim of Right 1689 

• Act of Settlement 1700 

• Act of Union 1707 

• Others? 

• Key Examples: 

• Bill of Rights 1689

• Parliament Acts 1911 & 1949 

• Fixed Term Parliaments Act 2011 

• Dissolution and Calling of Parliament Act 2022

• Two main types of Constitutional Legislation 

• Concerned with the organisation of, and allocation of power to, institutions of the government 

• Those that regulate the relationship between the individual and the state 

2. Case Law (judicial precedent)

Common law 

• Can recognise, establish or help develop constitution;l principles 

• But any decision may be set aside or amended by Parliament 

• UK courts 

Interpretation of statute law 

• Cannot strike down Act of Parliament; however, can seek what Parliament meant in particular acts 

• Lord Bingham: “the overriding aim… must always be to give effect to the intention of Parliament as expressed in the words used” [in the statute] 

• Rule of law principle that legislation should be interpreted by an independent judiciary 

• Black Spider memos case 

(i) R (On the application of Evans) and another v Attorney General [2015] UKSC 21 

(ii) Correspondence from Prince of Wales (Charles) to government departments → requests were made to disclose letters 

(iii) Freedom of Information Act 2000 - S.53 contains executive override allowing Ministers to override decision notice from Information Commissioner, or even a judicial decision 

(iv) SC finds against Attorney General 

3. Law and Custom of Parliament

• Where the government initiates its legislative programme and also where the government is held to account 

• Through Parliament where Ministers are accountable to people  

• The government must be able to command the confidence of the House of Commons → if not, the government falls 

4. Constitutional conventions 

• Monarch invites party with majority to form a government 

• Sewel Convention 

• Salisbury Convention 

• What are they 

• The unwritten rules of the game 

• Descriptive - Statements of constitutional practice, based on knowledge and observation of what happens 

• Prescriptive - statements of what ought to happen, based in part on observation but also on constitutional principle 

Elements of Constitutional conventions 

• Concerns constitutional matters 

• Operate supplementary to law 

• Constitutional actors feel bound by them 

• Must be some type of precedent established 

Why are conventions obeyed 

• Reflect personal sense of constitutional morality 

• Reflect widely shared sense of constitutional morality 

• Perhaps for self serving reasons 

• Conventions not always respected 

• Increasing amount of UK constitution being written and codified 

• Ministerial Code 

• Cabinet Manual 

• Scotland Act 2016 

5. The Royal Prerogative

History & Relevance 

• Derived from Parliament or Common Law 

• Retained to allow government to function 

Medieval Developments 

• King had powers to protect realm and also those for the public good   

• King still not above law, and royal functions must be exercised appropriately

• Kings courts used for land title, felonies, etc 

The Royal Prerogative today 

• Summons and prorogue parliament 

• Hereditary peers 

• Providing Royal Assent to Bills 

• Orders in council power to legislate 

• Can no longer create courts 

• Can stop prosecutions and pardon 

• Powers relating to foreign affairs carried on mainly under reliance of the prerogative 

• Acquiring and ceding territory 

• Special powers in times of war: restraining individuals entering / leaving and issuing passports 

• Treaties used to be made primarily under the prerogative 

• Recently greater pressure for Parliament involvement with regards to treaties 

• Govt may declare war 

• Monarch is commander in chief of armed forces 

• Monarch is the sole fountain of honour, with advice from PM 

• Statutes do not bind the Crown except by express statement or necessary implication 

• Tax not payable on income received by monarch 

• Courts will not recognise existence of new prerogative powers