Constitutions, The UK Constitution & Conventional Convetions

Constitutions

What is a Constitution?

  • a “rulebook“ for the state - sets out the fundamental principals by which a state is run

  • describes the main institutions of the state and the relationship between them (e.g. executive, legislature, judiciary)

  • places limits on the exercise of power; setting out the rights and duties of citizens

The Purpose of Constitutions

  • constitutions ensure stability

  • ensure that a government acts by consent of the people and has constitutional legitimacy

  • to represent a state’s constitutional watershed

  • places a constitutional limit and control on the government’s power

  • affirms particular goals/values - often reflect the times they were written

  • de-legitimise the use of political violence

Constitutional Legitimacy & Consent of the People

  • the acceptance and recognition that a constitution is the rightful and authoritative framework for governing a country.

  • this is crucial because it ensures that laws/principles outlined in the constitution are respected and followed by the government and people

  • consent of the people = the authority of the government and its constitution is derived from the approval and agreement of the governed population

Constitutional Watershed

  • a significant turning point or event that leads to major changes in a country’s constitution or its interpretation

  • e.g. revolutions

Codified Constitutions

  • written/codified constitution = rule/laws are outlined in one document or a set of documents

  • most constitutions are codified (written) in a single document (e.g. American Constitution)

  • are typically produced after a complete collapse of legitimacy in a government system (e.g. revolutions)

Contents of Codified Constitutions

  • often contain fundamental, superior law which is hard to amend

  • establish and details the primary functions of the state institutions, along with their roles and functions (Separation of Powers)

  • establishes the relationship between the individual and the state (what powers it can exert)

  • the procedures needed to change the constitution are special

Rigid & Flexible Constitutions

  • rigid constitutions require specific, stipulated procedures to be amended

  • e.g.

  • flexible constitutions contents can be amended using normal, legislative processes

  • flexible constitutions are less common due to constitutional law being seen as fundamental and therefore should be harder to amend

Federal & Unitary Constitutions

  • federal constitution = powers/responsibilities are divided between a central (national) government and regional (state or provincial) governments

  • regional governments have their own powers and can make decisions independently in certain areas

  • both governments have authority over different matters, as defined by the constitution

  • unitary constitution = power is found in a single, central law making body, which holds the primary authority

Constitutional Change

  • amendment usually only occurs via approval of super-majority (e.g. legislature) and/or simple-majority (e.g. popular referendum)

  • constitutional amendment can also be achieved via re/interpretation of constitutional texts by courts

Simple-Majority & Super-Majority

  • Simple- Majority = more than 50% of legislature members agree on amendment

  • Super-Majority = a higher threshold of agreement (66.67 - 75%)

  • super-majority is usually used for more significant/fundamental changes to ensure a broader consensus

Constitutional Complexities

  • Constitutional values/issue which complicate matters:
    • Parliamentary Sovereignty: no entrenched laws and ‘implied repeal’
    • A dualist constitution, in the context of international law (human rights) texts
    • An uncodified constitution in a common law system?

  • Some complexity comes from the foundations
    of the constitution

Complexities that come with Constitutional Complexities

  • An uncodified constitution means that the UK justice system
    has had to develop or retain a lot of ‘working rules’ i.e. things
    to ‘fix’ various ‘gaps’ that a codified constitution would naturally
    address.

  • Issues we will address in future lectures include:
    • The remaining extent of the Royal Prerogative
    • Constitutional convention(s)
    • The role and nature of judicial review (especially human
    rights-based judicial review)
    Some complexity comes from the uncodified
    nature of the constitution

Key Constitutional Cases

  • R (A and others) v Secretary of State for the Home Department [2004]
    UKHL 56

  • R(Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

  • R (UNISON) v Lord Chancellor [2017] UKSC 51

  • R(Miller) v The Prime Minister [2019] UKSC 41

  • R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ
    1605

  • R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin)

Constitutional Conventions

What are Constitutional Conventions?

  • constitutional conventions = rules of good political behaviour

  • e.g. the Prime Minister is expected to resign when it becomes clear they can’t lead the House of Commons confidently and another government can

  • typically rules of self-restraint; not exercising power to the fullest

  • are non-legal rules and are unenforceable - but breaking them can carry political sanctions

  • conventions have to generally accepted as binding to be classed as such

Constitutions & Constitutional Conventions

  • both un/codified constitutions rely on constitutional conventions - norms which guide constitutional actors

  • in the UK this is done to curb the privileged powers of the monarch

  • e.g. by convention the monarch appoints the person most likely to command confidence in the House of Lords to be the Prime Minister

  • e.g. in the US, when electing the President members of the Electoral College tend to reflect the most popular vote in their state not their own preferences

  • conventions aren’t prescribed by the constitution

Importance of Constitutional Conventions

  • conventions work across all branches of government (executive, judicial and legislative)

  • ensure that constitutions operate in accordance with current constitutional values

  • these conventions may evolve over time in line with changing practices and attitudes

  • constitutional conventions allow constitutions to change over time, without any fundamental change in the law

Examples of Constitutional Conventions

  • Westminster parliament won’t usually legislate on devolved matters, save with the consent of the devolved legislature (The Sewel Convention)

  • the House of Lords will normally give a Second Reading to any government bill (The Salisbury Convention)

  • ministers are bound by collective responsibility to support government policy, even if they privately disagree

  • judges will not criticise government policy and ministers will not criticise judges for their individual decisions

  • Royal Assent: the monarch will always act on advice given by ministers and assent to bills proposed in Parliament

  • Appointment of Prime Minister: monarch will always support the leader of the party with the most seats in the House of Commons

  • Ministerial Responsibility: a minister in charge of a department is always responsible for it’s failures and should resign

  • Collective Cabinet Responsibility: a minster must always publicly support a agreed government policies and if they can’t they should resign

Collective Cabinet Responsibility

  • Expectation: cabinet minsters may disagree privately but once a decision has been made all government ministers must support the policy and if not, they should resign

  • Function: a united and strong government is required for confidence in government decisions

  • Exceptions: collective cabinet responsibility can be suspended during referendum

Ministerial Responsibility

  • Expectation: a minister is held accountable to Parliament, where serious failings occur either on the part of the minister or the department their responsible for - they should resign

  • Function: to ensure minsters act with integrity and to allow parliament to perform it’s constitutional role of scrutinising the executive

Political Conventions

  • political conventions are inherently flexible and do not always have closed or singular definitions

  •  e.g.  a convention that the government would not commit troops overseas without a prior debate and vote in parliament was called into question when in April 2018 Prime Minister Theresa May authorised airstrikes on Syria

  • some conventions are firmer and clearer than others; with all conventions being capable of evolution

  • this evolution tends to happen quickly when conventions are stress tested in times of political or constitutional crisis

The Ministerial Code

  • a document that sets out the expected conduct of ministers

  • the document also outline what should happen when a breach of code is alleged

  • independent advisor on ministerial standards (ethics advisor) first appointed in 2006

Problems with Constitutional Conventions

  • individuals who may hold powerful constitutional positions could interpret requirements differently

  • a convention cannot be legally enforced and the system rests on the assumption that individuals will comply

  • there are no serious convention on international law (holding ministers accountable to international law)

The UK Constitution

What is the UK Constitution?

  • the UK is said to have an “unwritten constitution“

  • this isn’t true the UK Constitution is written; however it has never been codified into a singular document

  • it is found in multiple documents (e.g. legal statutes, conventions, judicial decisions and treaties etc.)

  • absolute monarchy —> power passed to parliament —> increased power of executive

Uncodified Constitutions

  • are subordinate: rules contained within these constitutions are NOT the most important law

  • are flexible - can be changed as easily as non-constitutional laws (have the same procedures)

Examples of Constitutional Statutes

  • the Bill of Rights 1689

  • Acts of Union 1707 & 1880

  • Act of Settlement 1701

  • Parliaments Acts 1911 and 1949

  • Human Rights Act 1998

  • Scotland Act 1998 (creation of Scottish Government)

  • Northern Ireland Act (creation of Irish Government)

  • Government of Wales Act 1998

Parliamentary Sovereignty & the UK Constitution

  • parliamentary sovereignty is the defining basis of UK Constitution

  • parliamentary sovereignty = parliament is the supreme legal authority in the UK, capable of making/abolishing laws

  • courts can’t overrule its legislation and Parliament can’t pass laws future Parliaments can’t change

Other Key Principles of UK Constitution

  • the rule of law (the law is applied equally and fairly regardless of status)

  • the separation of the government into executive, legislative and judicial

  • ministers are accountable to parliament

  • independence of the judiciary

Disadvantages of an Uncodified Constitution

  • it’s harder to understand

  • it is easier to amend (edit) than codified constitutions with elaborate amendment procedures

Advantages of an Uncodified Constitution

  • uncodified constitution’s flexibility can also be advantageous it has:

  • enabled the removal of hereditary peers from the House of Lords

  • introduced the Human Rights Act

  • devolution of Scotland, Wales, and Northern Ireland (allowed them their own governments)

  • aided in the creation of the Supreme Court

The UK Constitution’s Guardians

  • the UK Constitution has multiple guardians e.g., the Supreme Court, the House of Lords Constitution Committee, the Commons Public Administration and Constitutional Affairs Committee, the Lord Chancellor etc.

  • the constitutional also has specific watchdogs, such as the Judicial Appointments Commission & the Electoral Commission

  • without a codified constitution, parliament is the ultimate guardian

  • all it’s members – MPs and peers – have an important responsibility to uphold key constitutional principles

Constitutional Principles

Key Constitutional Principles

  • Institutional Checks and Balances

  • Representative Government

  • Rule of Law

  • Protection of Fundamental Rights

  • Integrity and Standards in Public Life

Institutional Checks & Balances

  • power is distributed among different branches of government (executive, legislature, judiciary)

  • this prevents any one branch from becoming too powerful

  • each branch is answerable to the others

Representative Government

  • citizens elect representatives to make decisions on their behalf

  • this ensures that the government reflects the will of the people

  • elections must be fair and free to ensure this

Rule of Law

  • EVERYONE, including the government, is subject to the law

  • laws must be clear, public and applied equally for them to be considered just and fair

Protection of Fundamental Rights

  • constitutions often protect basic human rights and freedoms (e.g., freedom of speech, assembly, and religion)

  • the government isn’t allowed to infringe on these rights

Integrity & Standards in Public Life

  • public officials are expected to act with integrity and maintain high ethical standards

  • This is in order to build public trust in the government and its institutions