Last week, we discussed Parliament, and described it as the “central component of the UK’s constitution.” This week, we are going to briefly survey that constitution, and understand where we might find it – its sources – and the basic rules that it lays out for UK politics – its provisions. Before we do so, as ever, we need to define our terms. A constitution is a “body of laws, customs, and conventions that define the composition and powers of organs of the state and that regulate the relations of the various state organs to one another and to the private citizen.” The UK’s constitution is very different to the model of constitution present in most other states, in that it is uncodified. This means that there isn’t a single document which contains all, or at least most, of the laws, customs, and conventions that make up the constitution. Rather, it is spread across four key sources, to which we will turn first.
The UK’s constitution draws on four sources – statute law, common law, conventions, and works of authority. Statute law in the UK simply refers to Acts of Parliament, and particularly those with key significance to the relationship between the parts of the state, and the state and its citizens. For example, the Scotland Act 1998, which created the Scottish Parliament, is a prominent constitutional act, because it created a new body in Scotland to handle certain Scottish matters, and outlined relations between that body at the existing Parliament in Westminster.
Secondly, we have the common law. This refers to legal principles created by the courts in making decisions, and ones so ancient that the courts treat them as law. This is a shrinking part of the constitution – more and more law is now in statute form – but nonetheless retains an important role. For example, the principle of parliamentary sovereignty that we introduced last week is considered to be an aspect of common, rather than statute, law. Similarly, what are called prerogative powers are used under common law – these are powers that are recognised as belonging to the Crown, but are exercised by the Prime Minister or other ministers. We will return to these next week in more detail.
Thirdly, there are conventions. These are the least tangible form of the UK’s constitution – they don’t exist in statute form, nor are they enforced by the courts. Rather, they are abided to by the parts of the state because to break them would disrupt the normal operation of politics. For example, it is only by convention that the monarch grants their approval to all Acts of Parliament – a convention dating back to the early 18th Century. Sometimes, conventions can be breached temporarily, and then restored to use afterwards – some conventions are stronger than others.
Finally, there are works of authority. Whilst these are much more tangible than the conventions – but their power in the constitution is persuasive only, and they are rather poorly defined. Clearly the work of scholars such as A. V. Dicey, who we encountered in last week’s discussion of Parliament, and Erskine May, count as works of authority – they lay out key principles of how the constitution is meant to operate, and how one of the most important organs of the state is meant to be regulated on a day to day basis, respectively. They are most useful, therefore, in interpreting the conventions and common law that form a part of the constitution.
The UK constitution, drawn from the four sources above, lays out four basic provisions – parliamentary sovereignty, the rule of law, a unitary system, and parliamentary government under a constitutional monarchy. We can restate the definition given last week from Dicey to cover the first provision, parliamentary sovereignty, as being the power to “to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
Dicey also argued that the rule of law was a key provision of the UK constitution. This is a little trickier to define (Dicey himself gives three definitions!) but here we will use Lord Bingham’s definition in his book on the subject: “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.” This might be characterised as the idea that no-one should be above the law; as Bingham and other scholars on this note, this principle is not evenly applied in the UK constitution, but it remains an important provision all the same.
The third provision also causes us a little difficulty – the idea of a UK as a unitary state. These are often contrasted with federal states such as the USA. In a federal state, power is divided between the national and more local units by the constitution – in a unitary state, it is the national government that holds all the power. Parliament, as the sovereign body, can create local government bodies, such as councils, hand them powers, withdraw them, redesign them – or even abolish them outright. This constitutional principle holds over even bodies such as the Scottish Parliament – but here the difficulty lies. Whilst it may be constitutional to abolish the Scottish Parliament, arguably the political pressures against doing so would be too great.
Finally, there is the idea of parliamentary government under a constitutional monarchy. This covers the relationship between parliament, government, and monarch – with the government the distinctly stronger component. It may broadly be expressed as the idea that the government governs through Parliament, rather than the country being governed by Parliament, with the monarch having a ceremonial role. The Prime Minister and other Ministers are appointed by the monarch, rather than Parliament, but are politically responsible too Parliament for their actions.
We have seen where the UK’s constitution is drawn from, and what its basic provisions are. It is worth remembering that, like any constitution, these are continually under pressure to change as circumstances do. Unlike most constitutions – which are codified – the UK’s uncodified constitution has no special provision to make amending it exceptionally difficult. There was no need, for example, for two-thirds of MPs to vote in favour of the creation of the Scottish Parliament in 1998 – it was created through a statute that holds the same basic status as any other statute. Whilst this makes the UK constitution flexible – a strength for some – it also means it can be changed very easily – which is alarming for others. As the UK withdraws from the EU, this will impose further strains on the constitution, a point worth bearing in mind.