British constitution

It is not true to say, as people often do, that Great Britain does not have a constitution. Rather, it is not a codified constitution: There is no one place or text where the basic relationships of state and citizen are all set out neatly together.

The practical political implications of this system are in fact quite substantial:

• There are no entrenched laws so any legislation whatsoever can be passed with a simple majority in the House of Commons (The Lords can only delay legislation). Within months of Scotland's Dunblane Massacre hand guns were banned all over Britain due to the ease of passing Bills when there is political consensus. The British system (with very strongly led and controlled Parties) seems to mean that such consensus can sometimes be reached and 'enforced' quite easily...Or is it just that we aren't such weapon-crazed lunatics?
• There is an effective 'Fusion of Powers' (As opposed to a Separation of Powers), with many political figures residing in two or three of the 'Power Groups'. The most important breach is that the Executive (Government) comes from the Legislative (Parliament). The Prime Minister sits in and picks his Cabinet and Ministers from Parliament (Nearly entirely the Commons these days). Of course, in hope of improving their career prospects (A Govnt. position), all but a few MPs remain 100% loyal to their party's leadership.
• There is no entrenched Bill of Rights in Britain. This has various impacts on the system. Undisputedly Judges in Britain are less powerful and, compared to the USA for example, quite 'unpoliticised'. This is due to the absence of over-riding constitutional law and the absolute supremacy of Parliament. The Judiciary can under no circumstances deem that an Act of Parliament is unconstitutional and will not be allowed. I should note, however, two things: The adoption of the European Convention on Human Rights into British Law. The Convention acts as a kind of Bill of Rights for British citizens, and there are procedures for British Judges to point out where other legislation breaks it's rules, but it remains only an Act of Parliament and is not entrenched. Secondly, in 1689 a Bill of Rights 1689 was adopted by Parliament following the 'Glorious Revolution'. It gave more power to Parliament over the Monarch, but is still only an Act of Parliament.
• A second and important (though it perhaps seems only logical) consequence of the absence of a Bill of Rights is how easily the rights of Britons can be ignored. Margaret Thatcher did an enviable job of proving this for us, please see my Civil Liberties node for further details.
• A last direct consequence which comes to mind is that Parliamentary/Governmental Terms in Britain are not of fixed length. General Elections can be held at any time the Prime Minister wished within a five year limit. This limit is of course not written anywhere and in theory it is enforced by the House of Lords.

The Six Sources of the British Constitution are as follows:

1. Statute Law Straight forward Acts of Parliament, E.g. Criminal Justice Act, 1994
2. Common Law One power that British Judges do have is that to make 'Common Law' in unprecedented situations. Other Judges faced with similar circumstances should follow the previous decision.
3. Royal Prerogative These are powers officially held by the Monarch, but in practice they are delegated to the Prime Minister. Examples are the power to confiscate land in emergencies and the power to give up or take away territory. This source is probably the most undemocratic and outdated.
4. Convention Well okay, perhaps I was a bit hasty in awarding the coveted 'Antiquated Award' to RP. One convention that is followed is that General Elections are always held on Thursdays.
5. Works of Authority These are old, large books written by 'Constitutional Theorists' and are used sometimes to establish procedure. An example is A.V. Dicey's An Introduction to the Study of the Constitution written in 1885.
6. Legislation of the European Union The most recent addition to the list, and to many - I hesitate to say conservatives - I hesitate to say traditionalists - oh sod it, and to many Miserable Tory Bastards the most controversial. This includes EU treaties that Britain has signed and Directives. In one sense these laws are superior to Britain's own Acts of Parliament, but on the other hand, would not the repeal of the European Communities Act 1972 end their significance?

It is interesting to consider which of the above list is most Undemocratic. And which one would Britains scrap, given the choice? My Euros are on numero six. Up the Tory Bastards: Crusaders for The People's Democratic Will!

The United Kingdom currently has no formalised constitution: what exists consists of laws and procedures which are commonly accepted, and have been established over time as 'the constitution'. Britain is often cited as an example of

“a country that illustrates the claim that it is not necessary to have a codified constitution to be a constitutional democracy.”

This idea is, however, becoming increasingly controversial. Up to and during the 1950s and 60s, the constitution was taken largely for granted: the UK was prosperous, living standards were increasing, and the government was “delivering the goods”. During the late 1960s though, the

“adulation of the constitution increasingly gave way... to criticism and demands for reform.”

The rising unemployment, industrial unrest, inflation, problems in Northern Ireland, and in particular the indeterminate result of the 1974 general election, called into question the capacity of the electoral system to produce a strong and functional government. The emphasis of the criticism of many observers was less on the government of the day, but more on the system itself. Groups such as 'Charter 88' began to pressure for constitutional reform, an idea that is becoming increasingly fashionable at present.

The existence of such groups as Charter 88 and creation of draft constitutions have naturally lead to some preconceptions of what material the constitution would contain: debates on whether the UK should adopt a codified constitution often centre on the possible content, which create reasons for and against a particular constitution. The possibilities of what the constitution may contain are nigh on infinite, so in order to examine what arguments there are for and against a codified constitution, rather than for and against specifics of content, a simple definition of a constitution shall be employed:

“...A set of rules... to establish the duties, powers and functions of the various institutions of government, regulate the relationships between them, and define the relationship between the state and individual.”

Assuming a codified constitution would follow the liberal democratic tendency of UK politics, it is necessary to consider the pros and cons of laying down a formal constitutional document in order to conclude whether or not such a piece would be valuable to British politics.

It is argued that the current constitution is self-serving for the upper classes, and is outdated for the modern political climate:

“Britain's constitution presents a paradox, and a contest. We live in a modern, liberal economy and society – yet, at the same time, we inhabit a pre-modern, indeed, ancient constitution.”

The current state form originates from the 1688 'Glorious Revolution', which established the primary institutions of British politics – the monarchy, bicameral parliament, church and independent judiciary. According to those who call for a liberal democratic constitution this was not “popular sovereignty”, it was,

“rather an aristocratic state constitution, an essentially High Tory political settlement.”

Unlike the later American and French revolutions, the 'Glorious Revolution' did not break the ties between power and money:

“No matter how frequently the constitution may have been reformed, the true anatomy of power, which goes deeper than institutions, remains.”

These claims that the 1688 revolution merely consisted of reforms that continued to serve the rich and powerful have been countered even recently. Ann Hughes claimed in The Guardian in 1988

“There was radical and egalitarian potential in aspects of the 1688 revolution, in its combination of staunch Protestantism, and adherence to the rule of law and representative government.”

This “potential” however, does not alter that the 1688 state form left power ultimately with those in government. Heseler argues

“The freedoms which Britons posses were gained for them by aristocrats (in their fight against the crown) and can be taken away from them, by parliament; and, to this day, are only ensured by the 'chaps in charge'.”

Similarly, the 1688 'constitution' allows for a monarchical veto over laws and parliamentary procedures, so democracy in the UK is under the 'benign provenance' of the monarch. Advocates of the current constitution argue that this veto would never be used, however, as Haseler makes clear:

“Although Britons are assured that a monarchical veto would never be used... we only have the sages' word for it.”

The argument against a codified constitution to protect the rights of Britons obviously requires that the monarch remains “out of politics”. However, parliamentary convention has altered and become less prominent in recent times, so there is no guarantee of other forms of conventions continuing. In this way, the case for a codified constitution can be argued that it would ensure some basic rights for UK 'subjects' which were not instigated at the time of the 'Glorious Revolution'.

A codified constitution would not only help secure Briton's rights, it would also help prevent the rise of single party dominance in government, or even a dictatorship. Lord Scarman outlined this risk:

“The decline in power of the monarch and the Lords has lead to the House of Commons becoming the dominant partner in the constitution. And the House of Commons is almost all the time managed and controlled by ministers who exercise the executive power, as well as, through their party's control of the Commons, the legislative power. We have achieved the total union of executive and legislative power which Blackstone foresaw would be productive of tyranny.”

This argument for a codified constitution states that there are not adequate 'checks and balances' on government. It has been employed in favour of constitutional reform by both major parties: after the 1974 general election, in which Labour were elected into office on less than 40% of the votes, the Conservatives pressed for

“certain rights to be put beyond the control of a simple majority in parliament.”

Likewise, during Mrs. Thatcher's time as Prime Minister, the Labour Party pressed for reform of the electoral system which was excluding them from office. The sovereignty of parliament means that the party in power has the capacity for “major and radical policies” , which could lead to all kinds of unwelcome laws, were the party so inclined. A constitution would place some 'checks' on the acts of governments, who would be answerable to an independent judiciary in order to judge whether government actions are 'constitutional'.

It could be argued in response to this that due to the very nature of parliament

“political competition, with the threat of losing an election, is a discipline on the government of the day.”

This argument however relies on the assumption that democracy continues in order for there to be an election to lose. Secondly, an assumption that the opposition presents credible competition in order for the threat of losing an election to be real is implicit in this idea: a particularly weak opposition gives license to the government to extend its powers beyond those that it would have otherwise.

Many opponents of a codified constitution also raise the point that a constitution does not necessarily provide 'checks' on a government any more than statute law or convention does:

“Constitutions do not always determine political behaviour... the behaviour of Stalin's government in the 1930s did not reflect the spirit of the constitution he himself had devised for the Soviet Union.”

It can so be argued that if a party is determined to overcome parliament and establish a single party state, a formal written constitution would have a negligible effect over an uncodified one. This idea considered, the view of such an extreme does disregard the effect a codified constitution would have on conventions and less extreme cases. Increasingly in current times, constitutional convention is disregarded, for example, the 1996 'Guns for Iraq Affair', in which William Waldegrave and Nicholas Lydell refused to resign in spite of pressure from all sides – breaking with accepted convention. Sidney Low illustrated the problem with constitutional conventions as long ago as 1904:

“We live under a system of tacit understandings, but the understandings themselves are not always understood.”

It can be argued that in such a situation as above, a codified constitution would be able to clarify the matter of whether the ministers should have resigned or otherwise.

In spite of these objections, many argue that a codified constitution is simply unnecessary, and dismiss it as a tool used by the opposition to weaken the government:

“The demand for checks and balances is often made by opposition MPs, who may simply not like what the government of the day is doing, or who may regard it as an additional weapon with which to curb ministers.”

Despite the idea of constitutional reform being such that it curbs extremism of ministers and government, this dismissal of the idea of a codified constitution on account of the motives for which arguments are presented does not in any way invalidate the arguments used, and so shall be considered no further.

The principal argument against codifying the constitution is phrased most succinctly by Mrs Thatcher after the launch of Charter 88:

“The government considers that our present constitutional arrangements continue to serve us well”,

The constitution has evolved “organically” over time and as such should not be altered. This 'evolution' means it is less partisan than one which would be decided at a particular point in time might be, as the current constitution has been contributed to by many different people from different eras. An 'artificial' constitution would have problems being accepted as legitimate for it would, according to this view, reflect the ideas of the contemporary government only:

“a large measure of agreement is essential if a constitution is to be legitimate.”

Furthermore, a 'praiseworthy' aspect of the uncodified constitution is its flexibility: the ease with which statute laws can be changed allows for response and adjustment to the changing political climate. A formally codified constitution would not have the same 'rapid response'.

There are several issues raised by these objections: firstly that they make distinct assumptions about the content and procedures concerning the constitution. The extent to which a constitution constructed at a particular time reflects that depends greatly on how it is devised, not on the fact that it is a constitution. Again, the legitimacy of the constitution relates heavily to how it is constructed and portrayed, so an accepted constitution is feasible. Similarly, arguments concerning the willingness of governments to use up their time, resources, and, possibly, reputation, to curb their own powers relate not to the issue of a constitution itself, but to why one has not yet been implemented. The constitution “serving us well” as it stands makes assumptions of the nature of politics in practice: that conventions will continue to serve as a check on politicians in the future as they have in the past. As previously illustrated, this does not appear to be the current trend.

The flexibility of the constitution can be employed as a virtue or downfall. On the one hand, flexibility allows the government to react to changing situations with more vigour. Conversely, the current method of change could be exploited by a government and lead to unsavoury outcomes. Furthermore, the flexibility and indeterminate nature of the current constitution can lead to problems with reform, as the government (or others) can claim any unwelcome change is 'unconstitutional':

“...the withholding of labour by trade unions to achieve political purposes is attacked as unconstitutional, although the withholding of investment of credit by companies or banks is not... The fact that there is no written constitution allows anyone who is credited with some authority to say what it is.”

The seemingly praiseworthy idea of flexibility within our laws is also therefore considered as a problem in defining them. Finally, this argument again makes assumptions about procedures of the constitution: as demonstrated by the US constitution, amendments can be made, should they be required. The procedure required for this is again an issue of content and not concept.

The overwhelming numerical majority of arguments in favour of a codified constitution does not automatically invalidate the claim to keep the status quo – these arguments tend to fall where they argue against matters of content or procedure which are in themselves not arguments against a codified constitution. Such a constitution would safeguard basic rights of Britons, albeit not absolute protection, but a start; and bring UK politics into line with our contemporaries in Europe and North America. It would eliminate ambiguities that currently cause problems – Birch states

“When writers and speakers describe the constitution they produce accounts that are significantly different from one another...”

In conclusion, there are valid arguments for and against a codified constitution, but the lack of conclusive arguments against such a document and persuasiveness of those in favour produce a clear argument for a codified constitution.

Sources
Birch, A. “The British System of Government” Allen & Unwin 1967, 1986, London.
Haseler, S. “The Battle for Britain” IB Tauris & Co., 1989, London.
Jennings, I. “The British Constitution” Cambridge University Press, 1966, 1971, Cambs.
Kavanagh, D. “British Politics: continuities and change” Oxford University Press, 1996, Oxford.
Leys, C. “Politics in Britain: from Labourism to Thatcherism” Verso, 1986, 1989, London.
Marshall, G. “Constitutional Theory” Oxford University Press, 1971, Oxford.
Miller, W. et al “Political Culture in Contemporary Britain” Oxford University Press, 1996, Oxford.
Norton, P. “Politics UK” Harvester Wheatsheaf, 1991, 1994, Harts.
Plumb, J. “The growth of political stability in England” Macmillan, 1967, London.
ed. Ramsden, J. “Oxford Companion to 20th Century British Politics” Oxford University Press, 2002, Oxford.