Contents:
The book goes on to offer a reasoned alternative.
The position that still dominates the field of constitutional law is that of parliamentary sovereignty or supremacy. According to this view, the supreme lawgiver in the United Kingdom is Parliamen According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: The people elect only one of those three houses.
This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. Dicey has little to offer those who really want to understand the nature of the constitution.
He suggests that the idea the people are sovereign dates back to the seventeenth century may be fourteenth century in Scotland , but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since , and perhaps since He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church.
This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like. British Constitution , Dicey, A. V , parliamentary sovereignty , Act of Union , Budget , Ulster Revolt , UK devolution , European Union , human rights , church and state , head of state , republicanism. Don't have an account? Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use for details see www.
University Press Scholarship Online. England and Wales share the same legal system, while Scotland and Northern Ireland each have their own distinct systems. These distinctions arose prior to and were retained after the unions according to the terms of the Treaty of Union , ratified by the Acts of Union , and the Acts of Union Reforms since have decentralised the UK by setting up a devolved Scottish Parliament and assemblies in Wales and Northern Ireland. The UK was formed as a unitary state , though Scotland and England retained separate legal systems.
Some commentators [33] have stated the UK is now a "quasi- federal " state: Attempts to extend devolution to the various regions of England have stalled, and the fact that Parliament functions both as a British and as an English legislature has created some dissatisfaction the so-called " West Lothian question ". In his judgment in Factortame , Lord Bridge wrote:.
Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act was entirely voluntary. Under the terms of the Act of it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.
In , the Court of Appeal disapplied parts of the State Immunity Act on the grounds that it conflicted with article 47 of the Charter of Fundamental Rights of the European Union. On one analysis, EU law is simply a subcategory of international law that depends for its effect on a series of international treaties notably the Treaty of Rome and the Maastricht Treaty. It therefore has effect in the UK only to the extent that Parliament permits it to have effect, by means of statutes such as the European Communities Act , and Parliament could, as a matter of British law, unilaterally bar the application of EU law in the UK simply by legislating to that effect.
If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision of it — or intentionally of acting inconsistently with it — and says so in express terms — then.
In Parliament passed the European Union Act which states in clause 18 Status of EU law dependent on continuing statutory basis: According to this principle, which was outlined by the European Court of Justice in in the case of Costa v. The conflict between the principles of the primacy of EU law and of parliamentary supremacy was illustrated in the judgment in Thoburn v Sunderland City Council , [42] which held that the European Communities Act , the Act that initiated British involvement in the EU, could not be implicitly repealed simply by the passing of subsequent legislation inconsistent with European law.
The court went further and suggested that the Act formed part of a category of special "constitutional statutes" that were not subject to implied repeal. This exception to the doctrine of implied repeal was something of a novelty, though the court stated that it remained open for Parliament to expressly repeal the Act. The United Kingdom is a constitutional monarchy , and succession to the British throne is hereditary. Parliament is bicameral , with two houses — the House of Commons and the House of Lords ; the monarch formally forms a third element of Parliament see Queen-in-Parliament.
Statutes are laws passed by Parliament and are generally the highest form of law. If the Commons votes against the Government on a motion of no confidence , the Fixed-term Parliaments Act specifies that Parliament automatically dissolves unless a subsequent motion of confidence is passed within fourteen days. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. In Parliament passed the European Union Act which states in clause 18 Status of EU law dependent on continuing statutory basis: British Constitution , Dicey, A. In Scotland, the separate history of Scots law and separate constitutional documents such as the Declaration of Arbroath in have led to differences in views about parliamentary sovereignty and debates about constitutional tradition. Members of the Supreme Court may be removed from office by Parliament, but only for misconduct.
The House of Commons, which unlike the House of Lords is democratically elected, has supremacy by virtue of the Parliament Act and Parliament Act An Act of Parliament of the United Kingdom is primary legislation and Parliament can and does alter the British constitution by passing such Acts. Under the British constitution, sweeping executive powers, known as the royal prerogative , are nominally vested in the monarch.
In exercising these powers the monarch normally defers to the advice of the prime minister or other ministers. This principle, which can be traced back to the Restoration , was most famously articulated by the Victorian writer Walter Bagehot as "the Queen reigns, but she does not rule".
The precise extent of the royal prerogative has never formally been delineated, but in , Her Majesty's Government published some of the powers, in order to be more transparent: The most important prerogative still personally exercised by the monarch is the choice of whom to appoint Prime Minister. The most recent occasion when the monarch has had to exercise these powers was in February , when Edward Heath resigned from the position of prime minister after failing to win an overall majority at the General Election or to negotiate a coalition.
Queen Elizabeth II appointed Harold Wilson , leader of the Labour Party, as prime minister, exercising her prerogative after extensive consultation with the Privy Council. The Labour Party had the largest number of seats in the House of Commons, but not an overall majority. The general election also resulted in a hung parliament.
After several days of negotiations, between the parties, Queen Elizabeth II invited David Cameron to form a government on the advice of the outgoing prime minister Gordon Brown. The monarch formerly enjoyed the power to dissolve Parliament normally on the request of the prime minister. However, this power was explicitly removed from the monarch by the Fixed-term Parliaments Act The last monarch to dismiss a prime minister who had not suffered a defeat on a motion of confidence in the House of Commons, or to appoint a prime minister who clearly did not enjoy a majority in that House, was William IV who in dismissed the Government of Lord Melbourne , replacing him with Robert Peel the Duke of Wellington briefly heading a caretaker ministry as Peel was on holiday in Italy at the time.
Peel resigned after failing to win the General Election — prior to the Reform Act, which abolished many rotten and pocket boroughs , it would have been very unusual for a government with Royal backing to be defeated in this way. Queen Victoria was the last monarch to veto a ministerial appointment. However, the possibility that a royal veto might be exercised independently by the monarch remained for at least two further centuries.
Pitt the Younger resigned in when George III made clear that he would veto Catholic Emancipation , which he regarded as a breach of his oath to uphold the Church of England—the measure did not pass until when George IV was persuaded to drop his opposition. As late as , George V took legal advice on withholding the Royal Assent from the Third Irish Home Rule Bill, which the Liberal government was pushing through parliament having recently removed the Lords' veto Parliament Act and in the teeth of threatened armed resistance in Ulster.
The King decided that he should not withhold the Assent without "convincing evidence that it would avert a national disaster, or at least have a tranquillizing effect on the distracting conditions of the time". The Royal Prerogative is not unlimited; this was established in the Case of Proclamations , which confirmed that no new prerogative can be created and that Parliament can abolish individual prerogatives.
However, as part of Parliamentary Sovereignty, Parliament could create new prerogatives if it so wished regardless. Parliament has the power to remove powers from the Royal Prerogative: However, the monarch's consent is required before Parliament may pass legislation removing such powers: The monarch's approval "Queen's consent" is required before Parliament may debate or pass proposed legislation affecting the Royal Prerogative, or the hereditary revenues, personal property, or personal interests of the Crown, the Duchy of Lancaster , or the Duchy of Cornwall. It is the monarch's constitutional duty to appoint a Prime Minister who can command support of a majority in the House of Commons.
When one party has an absolute majority in the House of Commons, the monarch appoints the leader of that party as prime minister. When there is a hung parliament , or the identity of the leader of the majority party is not clear as was often the case for the Conservative Party up to the s, and for all parties in the 19th century , the monarch has more flexibility in his or her choice. The monarch appoints and dismisses other ministers on the advice of the prime minister such appointments and dismissals occur quite frequently as part of cabinet reshuffles.
The prime minister, together with other ministers, form the Government. The Government often includes ministers whose posts are sinecures such as the Chancellor of the Duchy of Lancaster or ministers with no specific responsibilities minister without portfolio: If the Commons votes against the Government on a motion of no confidence , the Fixed-term Parliaments Act specifies that Parliament automatically dissolves unless a subsequent motion of confidence is passed within fourteen days.
The Prime Minister and government would have the option of resigning in order to allow a replacement government the chance to obtain a vote of confidence within the required timeframe, or remaining in office to fight the subsequent general election. The Government usually resigns immediately after defeat in a general election , though this is not strictly required.
For example, Stanley Baldwin 's government lost its majority in the general election of December , but did not resign until defeated in a confidence vote in January The prime minister and all other ministers take office immediately upon appointment by the monarch. In the United Kingdom, unlike many other countries, there is no requirement for a formal vote of approval by the legislature either of the Government as a whole or of its individual members before they may assume office.
The prime minister and all other Ministers normally serve concurrently as members of the House of Commons or House of Lords, and are obliged by collective responsibility to cast their Parliamentary votes for the Government's position, regardless of their personal feelings or the interests of their constituents. The prime minister is normally a member of the House of Commons. The last prime minister to be a member of the House of Lords was Alec Douglas-Home ; however, he resigned from the Lords and became a member of the Commons shortly after his appointment as prime minister in for about two weeks he served as prime minister despite belonging to neither House.
The last prime minister to serve a full administration from the House of Lords was Robert Cecil, 3rd Marquess of Salisbury , who served until Thus the executive " Her Majesty's Government " is " fused " with Parliament. Because of a number of factors, including the decline of the monarch and the House of Lords as independent political actors, an electoral system that tends to produce absolute majorities for one party in the Commons, and the strength of party discipline in the Commons including the built-in payroll vote in favour of the Government , the prime minister tends to have sweeping powers checked only by the need to retain the support of his or her own MPs.
The phrase elective dictatorship was coined by former Lord Chancellor Quintin Hogg in to highlight the enormous potential power of government afforded by the constitution. The need of a prime minister to retain the support of her own MPs was illustrated by the case of Margaret Thatcher , who resigned in after being challenged for the leadership of the Conservative Party. The strength of party discipline within the Commons, enforced by the whip system , is shown by the fact that the two most recent motions of no confidence in which a Government was defeated occurred in and There are three judicial systems in the United Kingdom: Under the Constitutional Reform Act the final court of appeal for all cases, other than Scottish criminal, is the newly seated Supreme Court of the United Kingdom: Furthermore, the Constitutional Reform Act guaranteed the independence of the judiciary , a concept that emerged from the Act of Settlement Vacancies in the Supreme Court are filled by the monarch based on the recommendation of a special selection commission consisting of that Court's President, Deputy President, and members of the judicial appointment commissions for the three judicial systems of the UK.
The choice of the commission may be vetoed by the Lord Chancellor a government minister. Members of the Supreme Court may be removed from office by Parliament, but only for misconduct. Judges may not sit or vote in either House of Parliament before the Act, they had been permitted to sit and vote in the House of Lords. The Church of England is the established church in England i. The monarch is ex officio Supreme Governor of the Church of England , and is required by the Act of Settlement to "join in communion with the Church of England".
As part of the coronation ceremony, the monarch swears an oath to "maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England" before being crowned by the senior cleric of the Church, the Archbishop of Canterbury — a similar oath concerning the established Church of Scotland , which is a Presbyterian church, having already been given by the new monarch in his or her Accession Council. All clergy of the Church swear an oath of allegiance to the monarch before taking office.
Parliament retains authority to pass laws regulating the Church of England. In practice, much of this authority is delegated to the Church's General Synod. The appointment of bishops and archbishops of the Church falls within the royal prerogative. In current practice, the Prime Minister makes the choice from two candidates submitted by a commission of prominent Church members, then passes their choice on to the monarch.
The Prime Minister plays this role even though they themselves are not required to be a member of the Church of England or even a Christian—for example Clement Attlee was an agnostic who described himself as "incapable of religious feeling". Unlike many states in continental Europe, the United Kingdom does not directly fund the established church with public money although many publicly funded voluntary aided schools are run by religious foundations, including those of the Church of England.
Instead, the Church of England relies on donations, land and investments. Although it is the national church, the Church of Scotland is not a state church; this and other regards makes it dissimilar to the Church of England. Under its constitution recognised by the Church of Scotland Act , it enjoys complete independence from the state in spiritual matters. The Church in Wales and the Church of Ireland are no longer established state churches.
Administrative law is often called "public law". Administrative law restricts the exercise of the government's power over public administration; it covers areas such as policing, prisons, urban planning, education, the environment and immigration. It ensures the exercise of the government's power takes place within a legislative framework. This means the legal responsibilities of governmental bodies are properly defined and, at the same time, the rights and interests of the country's citizens are protected from the misuse or abuse of government power over public administration. An example of administrative law in practice is the case of R.
North and East Devon Health Authority which held that a disabled woman told by a health authority she would have a "home for life" in a facility had a substantive legitimate expectation the authority would not shut it down. The legal scholar Eric Barendt argues that the uncodified nature of the United Kingdom constitution does not mean it should not be characterised as a "constitution", but also claims that the lack of an effective separation of powers , and the fact that parliamentary sovereignty allows Parliament to overrule fundamental rights, makes it to some extent a "facade" constitution.
In one article, Lord Scarman presents a spirited argument for a written constitution for the UK, but still refers to the compromise and resulting Acts of Parliament as a constitution. Dicey identified that ultimately "the electorate are politically sovereign," and Parliament is legally sovereign. To date, the Parliament of the UK has no limit on its power other than the possibility of extra-parliamentary action by the people and of other sovereign states pursuant to treaties made by Parliament and otherwise.
Proponents of a codified constitution argue it would strengthen the legal protection of democracy and freedom. There is also a belief that any unwarranted encroachment on the spirit of constitutional authority would be stiffly resisted by the British people, a perception expounded by the 19th century American judge Justice Bradley in the course of delivering his opinion in a case heard in Louisiana in The Labour government under prime minister Tony Blair instituted constitutional reforms in the late s and early-to-mid s.
The courts can advise Parliament of primary legislation that conflicts with the Act by means of " Declarations of Incompatibility " — however Parliament is not bound to amend the law nor can the judiciary void any statute — and it can refuse to enforce, or "strike down", any incompatible secondary legislation. Any actions of government authorities that violate Convention rights are illegal except if mandated by an Act of Parliament.
Changes also include the Constitutional Reform Act which alters the structure of the House of Lords to separate its judicial and legislative functions. For example, the legislative, judicial and executive functions of the Lord Chancellor are now shared between the Lord Chancellor executive , Lord Chief Justice judicial and the newly created post of Lord Speaker legislative.
The constitution of the United Kingdom or British constitution is a sum of laws and principles that make up the country's body politic. It is sometimes referred to as. Unlike most modern states, Britain does not have a codified constitution but an unwritten one formed of Acts of Parliament, court judgments and conventions. Professor Robert Blackburn explains this system, including Magna Carta’s place within it, and asks whether the UK should.
This was an ongoing process of constitutional reform with the Ministry of Justice as lead ministry. The Constitutional Reform and Governance Act is a piece of constitutional legislation. It enshrines in statute the impartiality and integrity of the UK Civil Service and the principle of open and fair recruitment. It enshrines in law the Ponsonby Rule which requires that treaties are laid before Parliament before they can be ratified. The Coalition Government formed in May proposed a series of further constitutional reforms in their coalition agreement.
The Acts were intended to reduce the number of MPs in the House of Commons from to , change the way the UK is divided into parliamentary constituencies, introduce a referendum on changing the system used to elect MPs and take the power to dissolve Parliament away from the monarch. The Coalition also promised to introduce law on the reform of the House of Lords. The Parliament of the United Kingdom retained the Acts passed by the Parliament of England from to , the Parliament of Scotland from to , the Parliament of Ireland from to and the Parliament of Great Britain from to None are entrenched , [4] although it is not necessarily the case that parliamentary sovereignty extends to changing the Acts of Union in and at will.
In Scotland, the separate history of Scots law and separate constitutional documents such as the Declaration of Arbroath in have led to differences in views about parliamentary sovereignty and debates about constitutional tradition. The Statute of Rhuddlan provided the constitutional basis for the government of the Principality of Wales from until its union with England after the Laws in Wales Acts and In , a Joint Committee of the House of Commons and the House of Lords discussed that "the fundamental parts of constitutional law could be taken to include the following statutes": From Wikipedia, the free encyclopedia.
For the card game, see British Constitution solitaire. Parliamentry constituencies Political parties Last election Next election Referendums. Constitutional convention political custom. Monarchy of the United Kingdom. Parliament of the United Kingdom. Cabinet of the United Kingdom. United Kingdom administrative law.
Retrieved 27 November Since there is no documentary constitution containing laws that are fundamental in status and superior to ordinary Acts of Parliament , the courts may only interpret parliamentary statutes. So, too, there are no entrenched procedures such as a special power of the House of Lords , or the requirement of a referendum by which the unwritten constitution may be amended.
The legislative process by which a constitutional law is repealed, amended or enacted, even one dealing with a matter of fundamental political importance, is similar in kind to any other Act of Parliament, however trivial its subject matter. British government and the constitution: