The constitution

I. Nature of the constitution

The role of a constitution:
 They establish the distribution of power within a political system
 They establish the relationships between political institutions and individuals
 They define and establish the limits of government and power
 They specify the rights of individual citizens and how they are to be protected
 They define the nature of citizenship ad how individuals may obtain citizenship
 They establish the territory which comes under the jurisdiction of the government
 They establish and describe the arrangements for amending the constitution
A constitution is a set of rules that establish and describe the distribution of power within a state, the
procedures of government, the limits of government and the rights of citizens as well as rules on citizenship
and constitutional amendment. A constitution can be codified or uncodified, federal or unitary.
Constitutionalism is a principle that government operates within a set of constitutional rule and not in
arbitrary fashion. The constitutional rules may be written or unwritten.
Codified and uncodified constitutions
A codified constitution has the followed features:
 Written in a single document
 Therefore, it is said to have a single source
 Constitutional laws are superior to other laws, a feature known as ‘dualism’
 Special arrangements exist to establish new constitutional laws/amend exiting ones or repeal
unwanted constitutional laws
 Normally come into existence because of a revolution or the establishment of independence from a
colonial master
 Because constitutional laws in a codified constitution are superior and safeguarded, they are said to
be entrenched. That means they cannot be set aside or changed without special safeguarding
arrangements.
An uncodified constitution has the following features:
 Not written in a single document
 Therefore, it has a number of different sources
 Constitutional laws are not superior to other laws
 The arrangements for changing the laws of the constitution are the same as those for passing other
laws
 Uncodified constitutions develop over time and are more flexible than codified ones
 Because constitutional laws are not superior and can be easily changed, they are said to be
unentrenched. They are not specifically protected against change. Therefore, it could be argued that a
codified constitution is more judiciable.
What is the nature of sovereignty?
Sovereignty is a key concept in relation to constitutions. Its meaning is this:
 it means ultimate power within a political system
 also means the ultimate source of political power
 legal sovereignty refers to the power to make laws. It is where power lies theoretically
 political sovereignty refers to the location of power in very general terms. It is where the power lies
in reality
 where sovereignty is located in an institution or individual officeholder by a constitution, it cannot be
overruled or changed without constitutional amendment. However, political sovereignty is a more
flexible concept.
Unitary and deferral constitutions
The distinction between these two types of constitutions are these:
 in unitary constitutions, legal sovereignty lies in one place. In federal constitutions, legal sovereignty
is divided between the centre and regional bodies.
 In unitary constitutions, any powers not assigned by law automatically fall to the body with legal
sovereignty; in the case of the UK, this is the Westminster Parliament. In a federal constitution, any
powers not specified in the constitution automatically fall to regional institutions
Unitary: U.K., France, Italy / Federal: USA, Germany, India

Sources of the UK Constitution

 Parliamentary statutes
These are laws, passed by the UK parliament, which have a constitutional effect. E.g.: The Human Rights
Act 1998 brought the EU convention on human rights into UK law, The Scotland act 1998 transferred
considerable power to a Scottish parliament and the Freedom of Information Act 2000 gave considerable
public access to official documents and information
 Conventions
These are rules that are not legally enforceable, but which are considered binding and so are, virtually, laws.
E.g. the Salisbury Convention is a rule that the HoL cannot obstruct a proposal that was contained in the
governing party’s las election manifesto and the Collective cabinet responsibility states that all member of
the government should always defend all government policies
 Common law
Similar to conventions, these are unwritten laws, but unlike conventions they can be enforced by the court.
E.g. The use of prerogative powers by the PM results from common law. This means that the PM has a range
of powers transferred from the monarchy, but not sanctioned by parliament.
 European Union treaties
The UK has signed a number of treaties, mostly concerning the transfer of power and sovereignty from the
UK to the EU. E.g. The Maastricht treaty of 1992 and Lisbon (reform) treaty of 2007 both transferred power
from the UK to the EU
 Works of authority
These are the writings of constitutional experts which describe constitutional practice. They have so much
authority that they have become part of the constitution. E.g. The rule of law as described by 19 th century
constitutional expert, A.V Dicey, establishes the principle of equality under the law

 Traditions
These are customs and practices that have grown up over a long period of time. They are not legal but tend
to persist. E.g. The annual Queen’s Speech is how the government’s annual legislative programme is
announced and parliaments procedures are largely traditional

What are the main features of the UK constitution?

 It is not codified. This makes it very flexible and certainly not entrenched
 Constitutional laws are not superior to other laws
 The sovereignty of parliament is fundamental. This means that, ultimately, the constitution and
its rules are in control of parliament. It means that constitutional rules cannot be entrenched, and
that Parliament can amend the constitution at will
 There is a constitutional monarchy. The queen is head of state but is constitutionally limited so
that her powers are held in reserve and not expected to use in normal circumstances
 The rule of law operates. All are equal under the law and the government itself is subject to laws,
just as citizens are.
 There is a lack of separation of powers. This means that the executive and legislative branches
are not separated from each other and that the executive (government) dominates the legislature
(Parliament).

I. Sovereignty and the constitution

Where does sovereignty lie in the British system?
This is a difficult question as the concept of sovereignty is uncertain. However, the following assertion are:
 Parliament is legally sovereign. This means it is the ultimate source of law and the ultimate source of
all political power
 UK government shares this sovereignty to some extent because it has the people’s mandate to
implement its political programme. This means parliament should not normally defy the will of the
government when it is acting with the people’s mandate.
 The people are sovereign at elections
 Referendums do not grant sovereignty to the people because they are not binding on parliament.
However, referendums results are sovereign in practice.
 The European union has legal sovereignty in those areas where it has jurisdiction. However, the UK
has not given up sovereignty finally to the EU because it can leave and reign all its sovereignty
 The developed administrations do not have legal authority, but they have quasi sovereignty. This
means that the power granted to them is unlikely ever to return to Westminster.
Quasi federalism definition: an expression which suggested that the devolution process looks effectively like
federalism but is not federalism specifically because no sovereignty has been divided.
TIP: When discussing the location of sovereignty in the UK, it is important to demonstrate that it is
constantly shifting between government and Parliament, between the UK and the EU, and towards the
people through referendums. Also, do not use ‘power’ as an expression for sovereignty as it is a weak word.

How has sovereignty in the U.K. changed since 1997?

Although sovereignty undoubtedly lies with the parliament, sovereignty in a moral general sense has moved.
These are the ways it has changed since Labour began to reform the constitution in 1997:
 A great deal of political sovereignty has been transferred to devolved administrations
 More sovereignty has been transferred to the EU
 There has been an increasing use of referendums to resolve key issues
 Arguably, the power of the executive in relation to parliament has grown, giving it effectively more
sovereignty
 It has been argued that the incorporation of the European convention on the HR into the UK law is
effectively a transfer of sovereignty over civil liberties

Is parliament sovereign? - An Essay

Parliament is seen as the sovereign body because it has absolute and unlimited legal authority, reflected in its
ability to make, amend and repeal any laws it wishes. However, there are doubts about the accuracy and
continuing relevance of parliamentary sovereignty to reasons such as the joining to the EU, devolution and
the implantation of the Human Rights Act.
Firstly, parliament’s sovereignty can be questioned due to the joining of the EC in 1973 which means the
UK has become the subject to the body of European laws and treaties. These laws are seen as superior to UK
laws and British courts must implement EU laws. For example, the Factortame case of 1990 showed how
the EU courts overruled the Act of Parliament whereby a Spanish fishing company was successful in arguing
that they were being illegally denied access to UK waters. The EU’s powers have been further extended by
increased use of qualified majority voting, the creation of a Common Foreign and Security Policy and
Justice and Home Affairs Policy.
On the other hand, the UK can still be seen as sovereign because they could opt out of the EU membership.
UK leaders have managed to exercise influence either in keeping certain policy areas off the table or
arranging opt-outs and this limits the scope of the EU’s powers. The concept of pooled sovereignty is also
important as extension of QMV may have removed the national veto in many cases, but it also acts as a
recognition of the benefits of the membership, e.g. the removal of trade barriers between member states, and
EU enlargement.
Secondly, the parliament can be seen as losing its sovereignty due to devolution. The transfer of
Westminster’s power to elected, sub-national governments has led to a raft of different legislation emanating
from these new bodies. For instance, Scottish and Welsh students have their university tuitions fees covered,
the ban on promoting homosexuality in schools has been repealed by Holyrood, and the Northern Ireland
Assembly has ploughed its furrows on rights with the creation of a Single Equality Act.
However, in de facto terms changes in the location of political power have resulted in a quasi-federal
landscape where policy differences continue to multiply throughout the Celtic fringes and the capital. But
the de jure status of these new elected structures is not guaranteed. The UK retains its unitary constitution; it
is not a federal state. Westminster, if it so desired, could impose direct rule on the various regions or abolish
them completely.
Lastly, parliament’s sovereignty could also be undermined due to The Human Rights Act. Since the
introduction of the act in 2000 judges have had the power to review cases in light of the ECHR and to
declare Acts of Parliament incompatible with the Convention. In 2004 the Law Lords ruled 8-1 against the
government’s indefinite detention of terrorist suspects in Belmarsh and Broadmoor prisons under the Anti-
Terrorism Crime and Security Act 2001.

Yet, In the highly controversial Belmarsh Case, Parliament could have ignored the judgement declaring
indefinite detention for foreign nationals, furthermore, even though Parliament chose not to ignore the
judgement, the suspected international terrorists had to remain in prison until new legislation was written,
since the principal of parliamentary sovereignty makes it impossible to strike down primary legislation.
In conclusion, it is very debatable whether parliament remains sovereign to this day, however it is clear to
say that any means that can remove parliament’s sovereignty such as the membership of the EU can be
rebuked by parliament and it will always remain sovereign.

The European Union and the UK constitution

What has been the impact of membership of the EU on the constitution?
The UK joined the EU in 1973, since when large amount of sovereignty have been transferred to Europe – a
process known as ‘pooling sovereignty’ (how legal sovereignty within the EU is shared among its members).
The impacts of the EU membership have been as follows:
 EU laws are superior to UK laws
 In any conflict between EU law and UK law, EU law prevails
 UK courts must enforce EU law
 Appeals based on EU law are heard in senior British courts, but final appeals may go the European
court of justice
 Parliament has surrendered sovereignty to the EU in certain policy areas, as defined in a series of
treaties. In these areas, sovereignty is pooled
 Areas of pooled sovereignty include trade, consumer law, employment law, agricultural subsidies and
fishing regulation
 Parliamentary sovereignty has not been permanently lost as the UK can leave the EU

I. Reforming the constitution

Should the U.K. Constitution be reformed?

This question refers to the long-running debate over whether it is time to codify the UK constitution. This is
an argument that is usually promoted by liberals, mainly on the basis that Britain’s constitutional
arrangements are bow out of debate.

In favour of codification Against codification

 Clarity. Citizens know how power is  Flexibility. An uncodified constitution can
distributed and what the limits are to the be easily changed and so evolve and adapt
 power of political institutions to changing circumstances
 Limiting government. A codified  Strong government. A codified
constitution is likely to prevent a ‘drift’ of constitution might limit the power of
power towards over-powerful government too much, making government
government ineffective
 Safeguarding the constitution. If  Accountability. Governments cannot ‘hide’
codified, it would be difficult for a short- behind an uncodified constitution to justify
term government to amend the their inactivity, thus making them more
constitution for its own, narrow, benefit. accountable
 Rights. A codified constitution would  Popular control. Though uncodified
clearly state the rights of citizens and constitutions seem easy to change, in
help prevent government form abusing practice they can only be changed if the
those rights people desire change. So the constitution is
 Strong judiciability. Such a constitution more under popular control.
could be effectively protected by the  Weak judiciability. As it is not codified,
senior judges such a constitution is less subject to control
by unelected, unaccountable judges.

The reforms under Labour after 1997

 Devolution
Considerable powers were transferred to Scottish parliament, Welsh Assembly and Northern Ireland
Assembly, the process was known as devolution. Devolution is a process of transferring power form the UK
parliament and government to regional governments in Scotland, Wales and Northern Ireland. This does not
represent any transfer of sovereignty.
 Elected mayors
An elected mayor was introduced for Greater London. Referendums in other parts of the country resulted in
11 further examples if elected mayors.
 The Human Rights Act
The European convention on HR became part of British law, binding on all bodies other than the UK
Parliament.
 Freedom of information
An Act gave citizens the right to view information being held about themselves as well as public records and
documents. These had previously been unobtainable.
 House of Lords reform
All but 92 of the hereditary peers lost their voting rights in the Lords. A new Appointment Commission was
set up to regulate the appointment of future peers
 Electoral reform
Proposals to hold a referendum on electoral reform for general elections were dropped. However,
proportional electoral systems were introduced for devolved election in Scotland, Wales and N.I
 Judicial reform
The highest court of appeal, effectively the constitutional court, was transferred away from the senior judges
sitting in The House of Lords, to a new Supreme Court. This was to make the senior judiciary more
independent. The legal system was removed from control by the Lord Chancellor and a new Judicial
Appointments Commission was set up to ensure judicial independence.
TIP: examiners are looking for not just how the UK constitution has reformed, but also why and how
effectively
Why did Labour reform the constitution?
Labour was keen to reform the constitution for a number of reasons:
 Modernisation. The constitution looked out of date and out of step with the rest of Europe. New
Labour was a modernising party.
 Electoral advantage. Labour believed electoral reform would be popular and help it win votes,
especially in Scotland and Wales
 Democratisation. New Labour was influenced by liberalism and so wished to make the constitution
more democratic and liberal in nature.
 Anti-conservatism. Conservatives opposed reform, which was a reason for labour to defy them.
Labour also believed there had been a drift towards excessive executive power under conservatives
since 1979.
Coalition proposals to reform the constitution
Proposal Detail
Electoral reform A referendum was to be held in May 2011 on
whether to introduce the alternative vote system fir
general elections. The referendum votes ‘No’.
Fixed-term parliaments These were agreed in 2010. The gap between
elections to the HoC was fixed at 5 years. This took
away the PM’s power to determine the date of
general elections.
House of Lords reform Legislation was to be introduced to create a partly
or fully elected HoL
A British Bill of Rights Consideration was to be given to replace the HR
Act with a British Bill of Rights outside the control
of the European Court of Human Rights
Equality constituency sizes In 2011, legislation began the process if redrawing
constituency boundaries to ensure all parliamentary
constituencies are of equal size.
Recall of MPs Constituents were to have the power to hold a vote
on whether to ‘recall’ MPs who abuse their position
Devolution Promise of a Welsh referendum on more power to
its assembly was to be honoured (a ‘yes’ vote which
was achieved in February 2011). Promise to allow a
Scottish referendum on increased powers to the
Scottish government and parliament.
European Union Any proposed transfer of sovereignty to the EU
could only take place following a ‘yes’ vote in a
referendum
Elected mayors Referendums were to be held in major cities to
determine whether they should introduce elected
mayors (if there was not already on in existence).

Evaluating constitutional reform

This section considers to what extent the constitution has been reformed as well as the ways in which reform
has not taken place
TIP: It is important for students to keep up to date with constitutional reform. Examiners look for up to date
knowledge.
Key Changes:
 Government has been decentralised through devolution and the introduction of elected mayors
 Rights are better protected through the Human Rights Act and the Freedom of Information Act
 The HoL has, arguably, become a more effective check on the power of government
 The electoral systems of Scotland, Wales and Northern Ireland have been made more proportional
 The judiciary is more independent, making it more able to protect rights and check abuses of
government power
 The introduction of fixed terms means that governments cannot manipulate election dates for their
own advantage
 The proposals for reforming constituency boundaries are introducing recall of MPs may make them
more accountable
Criticisms and failed reforms
 It can be argued that the U.K. has been weakened by devolution
 The HRA and greater judicial independence have created conflict between senior judges and
government
 Parliamentary sovereignty means that rights cannot be properly protected
 Electoral reform has failed
 The future of the HoL reform is uncertain and the Lords remains an undemocratic institution
 Many argue that the UK still needs a codified constitution
 It is argued that the executive remains to strong and Parliament too weak

Strengths and weaknesses of the UK constitution

The U.K. constitution has been both praised and criticised. (see table)
Elective dictatorship: a description of how the executive (government) branch in the British political system
is dominant to such an extent that it has been describes as a ‘dictatorship’.
TIP: It is often a mistake to describe the executive branch as always dominant. It is however, often
dominant.
Positive elements Negative elements
 It is flexible. Because it is uncodified it can  It is too flexible and so can be amended by a
evolve naturally and respond easily to temporary government that wishes to serve
changing circumstances. its own purposes
 It provides for strong, decisive government  It allows government to have too much
which is not constrained by constitutional power as there are inadequate constitutional
rules. The governments mandate is normally safeguards in place
clear
  It has stood the test of time and so remains  It is old fashioned and does not conform to
part of Britain’s political traditions the normal picture of the modern
constitution. It allows for undemocratic
institutions such as the HoL and the
monarchy
 The doctrine of parliamentary sovereignty  Parliament is too weak relative to
makes government relatively accountable government and its insufficiently
representative. The electoral system
reinforces the lack of representation
 Its unitary nature helps to maintain national  Power is much too centralised and so
unity threatens democracy
 The independent judiciary ensures the rule  Individual rights are not well protected
of law is maintained because Parliament is not subject to
constitutional control
 It provides for a collective form of  The fact that it is not codified means that
government, as opposed to presidential citizens find it difficult to understand
systems which may place too much power
in the hands of one individual

Summary
 Constitutions are key elements in a country’s political system. They determine the distribution of
power and the relationships between political institutions. They are also key documents for
establishing citizen’s rights.
 The UK constitution is unusual for a number of reasons. First, it is not codified, and secondly, it is
largely replaced by the doctrine of parliamentary sovereignty. This means that parliament has control
over the constitution and can change it at will. It also makes the constitution highly flexible.
However, it does not mean that there is no such thing as the UK constitution.
 The UK constitution has a number of different sources including statutes, conventions, common law,
EU treaties, traditions and works of authority.
 Sovereignty is a key idea in constitutional matters. It means ultimate legal power and the ultimate
source of all political power. Parliament is legally sovereign in the UK. However, sovereignty can
also be said to reside with the people in political elections or referendums. It can also be said to lie
with government because of its electoral mandate. The EU has sovereignty in areas of its jurisdiction.
Devolution has conferred a kind of quasi sovereignty on devolved administrations.
 The location of sovereignty in the UK is constantly shifting as political circumstances change.
 Membership of the EU has had a major impact on the EU’s constitutional arrangements.
 A key question of British politics is whether or not the constitution should be codified.
 Constitutions are either unitary, where sovereignty lies to one central place, or federal, where
sovereignty is divided between the centre and regions.
 Major reform in the UK constitution began in 1997 with the advent of a Labour government. A
further round of reform is proposed by the collation government that took power in 2010.
 Reform of the constitution has certainly improved democracy and rights in the UK and has also
decentralised power through devolution. Many critics, however, argue that there is much to be done
to modernise and democratise in the UK.