You often hear legal and political commentators speaking about the UK’s constitution, and how things are or aren’t constitutional. But what is the constitution, and do we even have one?
What is a Constitution?
A constitution is a set of principles and practices that govern how a state (or another organisation) is run and has the primary aim of governing the relationship between the state, its institutions, and the citizens. Constitutions can be codified (e.g. USA, France, Germany), which means it is written in a single document. They can also be uncodified (e.g. the UK, Israel, Saudi Arabia) which means, you guessed it, it is not written in a single document but comes from a variety of sources.
What are the sources of the UK Constitution?
Our constitution is made up of a number of different sources. Let’s take a look at some of the major ones:
- Statutes (a.k.a Legislation): these are Acts of Parliament, which are laws passed by the House of Commons and the House of Lords. The Human Rights Act (1998) is an example of a statute that has had a significant impact on the constitution.
- Common law: this is a law created by precedents set in the courts. When a case is brought to court, if there is no legislation regulating how the case should be ruled, the judge will often come to their own decision. Common law is bound to change, as higher courts can overrule, or Parliament can legislate in that area. For example, murder began as a crime under common law. Parliament didn’t legislate in this area until the Homicide Act (1957).
- Convention: these are traditions that have developed over a very long period of time. Due to the fact that the UK has developed over centuries, there are a lot of practices that we take as a given, but in fact, have no written rules. One such example is the idea that the Prime Minister should be the leader of the largest party. This is a convention, and it is (in theory) up to the monarch to decide who becomes PM.
- EU Law: These are laws passed by the European Union, which (at the moment) have precedent over national law. Obviously, with the vote for Brexit, many of these laws won’t apply once we leave the EU. One example of this is the Working Time Directive (2003) which means EU workers do not have to work over an average of 48 hours per week.
- Authoritative Texts: These are long established, academic texts surrounding parliamentary principles and procedures. They lack significant legal recourse (meaning they have stood the test of time, without being challenged). One such text is Erskine May: Parliamentary Practice which is considered to be a ‘parliamentary bible’ on procedure and convention.
What are the key features of the UK Constitution?
The UK Constitution has some key features, which set it aside from others. Along with the sources, these principles are what define the constitution.
- Parliamentary Sovereignty: The principle that parliament is the supreme legal body in the UK. It can make, change or end any law. (Read more about this concept here)
- Unitary: All power and authority derive from a central body (the parliament in Westminster) and hence, in theory, all devolved power to bodies such as the Scottish Parliament can be removed at the whim of the UK Parliament.
- Uncodified: As mentioned earlier, there is no single document, but a number of sources. This is down to the fact that the UK’s history has been, in general, evolutionary rather than revolutionary. There hasn’t been an event which has changed the state as dramatically as the American and French Revolutions, or even the course of events that led to a unified Germany after the Cold War.
- Flexible: The constitution can be changed without a drawn-out amendment procedure. This means that Parliament simply has to pass a new law, and the constitution has changed. This is unlike America, where it is intentionally hard to change the Constitution. This (in theory) allows for the UK to react quickly to changes in social trends.
- Fusion of Powers: Possibly one of the most controversial features, this means that the executive (the government) is drawn from the legislature (parliament). For example, Theresa May is the Prime Minister (Head of the Government) as well as the Member of Parliament for Maidenhead.
Why does this matter?
Well, with all the talk around Brexit and the Supreme Court ruling that the Executive does not have the power to invoke Article 50, but it is, in fact, the responsibility of Parliament to vote on the matter, the Constitution is playing a key role. There are a lot of debates around how exactly we’ll constitutionally approach the withdrawal from the European Union due to the fact that there is so much EU Law entwined with our own. One suggestion is a new constitution for the UK.
But what do you think? Let us know in the comments!