In response to Scoop’s request over at NEO, and in light of the upcoming vote on the proposed agreement with the EU, I thought I would outline the constitution of the United Kingdom. This is a vast, and at times confusing, topic, so a post will not be able to do it much justice, but I hope the reader finds it helpful and that it may clarify anything that is unfamiliar or confusing on the news or in political blogs. In this post, I intend to look at the overarching nature of our constitution, the sources of constitutional law, the three branches of government, and judicial review.

Before commencing the main content of this post, I would first like to review some terms, in order to ensure that the reader is comfortable with the content of the post.

The United Kingdom of Great Britain and Northern Ireland (UK) is the legal term for my country, i.e. how it describes itself and how it is to be described formally by foreign powers (e.g. at the United Nations). Just as “America” is not the full and legal name of the USA, so it is incorrect to refer to the UK simply as “England”, when the full country is meant. The UK comprises England, Wales, Scotland, and Northern Ireland.

Great Britain is a geographical term, not a legal one. It would be incorrect (and a gaucherie) for a foreign power to address the ambassador of the UK as the ambassador of Great Britain. Great Britain refers to the larges of the two islands that are parts of the UK, i.e. the island containing England, Wales, and Scotland. Northern Ireland is on the island of Ireland; it has a southern border with the Republic of Ireland, which is a separate country and not part of the UK.

England and Wales as a single term can refer to a jurisdiction within the United Kingdom, i.e. an area governed by the same law. Wales also has its own regional government that has responsibility for some matters in Wales, but this government is ultimately subject to Westminster.

Westminster as a shorthand, colloquial term is a reference to the Parliament of the UK, which has the power to legislate for the entire country. Westminster is a part of London (technically a city in its own right) in which the Houses of Parliament are situated, the venue in which our legislate assembly sits to debate and create our statutes (see the photograph above).

Statute refers to a law created by Parliament (or regional or local authorities), as opposed to laws created by the courts (common law), causes of action in equity, or laws created by the European Union (EU).

Compare and Contrast

It is often helpful to show the similarities and differences between the USA and the UK by way of summary or introduction.

American Constitution

• Written
• Federal
• Presidential

UK Constitution

• Unwritten
• Unitary
• Constitutional monarchy

Americans can point to a single document with its attached amendments and say, “This is our constitution”; they have what is known as a “written constitution”. The meaning of its provisions may be debated and defined in the Supreme Court, the final arbiter of constitutional law in the USA, but the court is not supposed to create anything, merely interpret.

By contrast, the UK’s constitution is said to be unwritten. There is no single document to which we can point that contains all of our constitution. The UK’s constitution has a variety of sources, including:

• Statutes;
• Constitutional conventions;
• Prerogative powers;
• Common law;
• Human rights law; and
• European Union (EU) law.

Whereas the USA has a federal constitution, i.e. one that draws together separate states while simultaneously leaving to them a certain degree of independence, the UK has a unitary constitution. This means that the nations that make up the UK are supposed to be closely bound together. In practice the distinction is becoming less relevant as various powers have been “devolved” to the regional legislatures and executives of Wales, Scotland, and Northern Ireland. Nevertheless, the Westminster Parliament has authority to govern the whole country. Symbolically, the unity of the UK is represented by a single monarch, Her Majesty the Queen, to whom all the nations are subject.

Whereas the USA is a republic, headed by an elected President, the UK is a constitutional monarchy. Our head of government is the Prime Minister, who runs the country on a day-to-day basis; however, our head of state is the Queen. Historically, the monarch at one time had almost absolute power, but over time this power was whittled away by powerful lords, the courts, and Parliament, culminating in the creation of the constitutional monarchy during the Glorious Revolution. In real terms, the monarch has no actual political power, and any attempt by the monarch to rule the nation directly and assertively would provoke a constitutional crisis.

Sources of Constitutional Law

Statute

The High Court recognises that certain statutes are of a constitutional nature, and therefore are immune to the implied repeal rule that affects other statutes. This means that the provisions of a constitutional Act cannot be impliedly repealed by a subsequent Act; if Parliament wishes to repeal or amend a constitutional Act, it must do so expressly. There is no exhaustive list of constitutional statutes, but the following are uncontroversial:

• Magna Carta 1215;
• The Bill of Rights 1689;
• The Acts of Union 1706-7;
• The Parliament Act 1911;
• The Parliament Act 1949;
• The House of Commons Disqualification Act 1975;
• The Human Rights Act 1998;
• The Constitutional Reform Act 2005; and
• The Fixed-term Parliaments Act 2011.

Constitutional Conventions

Constitutional conventions are not laws per se; the courts do not recognise them as laws. Nevertheless, they play  role in the workings of the constitution and are generally observed. Nor should a constitutional lawyer assume that conventions will be ignored, should an applicant bring a case for judicial review to the High Court. Constitutional conventions have also been brought before the Privy Council, which is the highest court of appeal for countries that belong to the Commonwealth. The opinions of the Privy Council, which meets in London, are not binding in the UK, but they are often persuasive. These conventions have developed over time in order to ensure the smooth functioning of the constitution. They are flexible, capable of being created and of falling into abeyance. They grew as matters of honour, accountability, responsibility, democracy, and stability. They evolved in order to avoid the anarchy that would ensue in cases where there were no governing statutes or case law. Examples of constitutional conventions include:

• Collective cabinet responsibility;
• Individual ministerial responsibility;
• The Salisbury convention;
• The sub-judice rule; and
• The monarch must not refuse to grant Royal Assent.

Prerogative Powers

These are the vestiges of powers that belonged to the monarch. They are now exercised by Her Majesty’s ministers on her behalf. They can be taken away by the courts, by Parliament, and by means of treaties. It is necessary for the executive to have certain powers in order to fulfil its function efficiently; however, it is arguably dangerous to leave the executive with too many powers or powers in the wrong areas, and it is unwise to leave them undefined. Thus, over the years, these powers have been challenged, defined, and refined. Examples of these powers include:

• deploying the armed forces;
• concluding treaties with foreign powers;
• proroguing (opening) Parliament; and
• conferring honours (e.g. knighthoods and peerages).

Common Law

The courts, through case law, have also created constitutional rules in order to limit the power of the state and safeguard the rights of citizens. These rules initially developed as a response to abuses of monarchical power, but, as power became concentrated in the Prime Minister and Cabinet, they also came to address the power of the government. Examples include:

• The Case of Impositions:
  • The monarch cannot levy taxes without the consent of Parliament;
• The Case of Proclamations:
  • The monarch cannot create new prerogative powers;
• The Case of Prohibitions:
  • The monarch has no power to make law or decide disputes through arbitrary rulings – all cases must go through the courts;
• Entick v Carrington:
  • The executive cannot act without lawful authority; and
• The Belmarsh case:
  • Indefinite detention without charge or trial is unlawful.

Human Rights Law

The UK is a signatory to the European Convention on Human Rights (ECHR), which developed as a response to the atrocities caused by tyrannical governments during WWII. The European Court of Human Rights (ECtHR), based in Strasbourg, hears cases pertaining to human rights, and functions as a quasi-court of appeal. It is important to note that the ECHR is not an EU treaty and the ECtHR is not an institution of the EU. However, the Court of Justice of the European Union (CJEU) is influenced by ECtHR jurisprudence. The rulings of the ECtHR, while persuasive in UK courts (indeed they are required by statute to show due regard to them), are not binding upon us. The Supreme Court is the highest court of appeal in the UK as far as binding precedent in human rights law is concerned.

Human rights law affects both the civil law and the criminal law in the UK. Claimants in civil cases can include breaches of human rights law within their causes of action, and defendants in criminal proceedings can appeal on human rights grounds. Human rights are also relevant to applications for judicial review in constitutional and administrative law.

EU Law

On this point, I would direct the reader to my earlier post on sources of English law. By virtue of our treaties, secondary  EU legislation, and rulings of the CJEU and UK courts, EU law (currently) is a part of the UK constitution, constraining the powers of Parliament, the executive, and the judiciary. The UK may not lawfully pass laws that contradict the legislation and jurisprudence of the EU. For example, if the UK decided that it wanted to make discrimination in employment on the ground of gender lawful, it could not do so, because of provisions in EU legislation and treaties. I make no comment about whether it is moral to do so; I merely cite this as an example to illustrate how the EU can be a source of rights for individuals and a source of constraint for legislatures of the Member States.

The Three Branches of Government

The three branches of government, as made famous by the constitutional theory of Montesquieu (who was influenced by the UK’s constitution),  are the executive, legislature, and judiciary. While we do not formally use the term “checks and balances”, they do exist in various forms in the UK constitution. The Founders of the USA were influenced by what they knew of the UK constitution as it existed in their day, and added refinements and additions of their own to it. The constitutions of the original colonies were also influenced by English laws and sensibilities.

The Executive

The monarch is the head of state. She appoints the Prime Minister, who in turn appoints Cabinet ministers, to form a government. The executive also involves local government, the Civil Service, charged with carrying out the wishes of the government, and the armed forces and police, charged with defending the nation and enforcing her criminal laws. Unlike the USA, the UK blurs the distinction between the executive and legislature, though we have laws that prevent members of the civil service, armed forces, police, and judiciary from sitting as Members of Parliament (MPs). Most government ministers, including the Prime Minister, sit as MPs in the House of Commons. The remaining ones generally are lords sitting in the House of Lords. The government is responsible for proposing statutes and taking action (via the civil service) regarding matters that fall within its purview.

The Legislature

Parliament is the great legislature of the United Kingdom, although there are regional assemblies in Wales, Scotland, and Northern Ireland at Cardiff, Holyrood, and Stormont respectively. Local authorities can also pass bylaws. Parliament is made up of the monarch, the House of Commons, and the House of Lords, although it is possible for Parliament to be composed of only the first two categories, as in cases where the House of Commons passed an Act without the approval of the House of Lords. Parliament creates our statutes by passing Bills, which become Acts when the monarch grants Royal Assent. Parliament can, theoretically, legislate on any matter it chooses. In practice, its sphere of activity will be limited by political realities and other constitutional considerations, such as common law rules and treaties.

MPs are elected during general elections according to constituencies. In the past, general elections were held roughly every five years. There was no law specifying when general elections should be called (except for the period when they were required by statute at least every three years). The prerogative powers of dissolving and proroguing Parliament for the purpose of elections remained with the monarch – although in practice they were used by the Prime Minister. Now, under the Fixed-term Parliaments Act 2011, the monarch can no longer dissolve Parliament at will (although prorogation remains with her). Elections must be held every five years and not earlier unless a two-thirds majority of the House of Commons consents.

The House of Lords is an unelected chamber, including hereditary peers, the Lords Spiritual (senior bishops of the Church of England) and life peers. Hereditary peers were once the main component of the House of Lords, but there are few of them in Parliament now, owing to laws enacted during the time when Tony Blair was Prime Minister. Apart from a few hereditary peerages that retain the right to sit in the House of Lords, the vast majority were faced with a choice: they could remain in Parliament but lose the right to pass on their titles to their children, thus ending the hereditary peerage, or they could retain the hereditary peerage and lose the right to sit in the House of Lords. I believe that most chose the latter option. The main ranks of hereditary peer are: Duke, Marquess, Viscount, Earl, and Baron. Baronets may not sit in the House of Lords. Life peers are awarded their title for life, but may not pass it on to their children. Such peerages are given to political appointees (i.e. conferred by the Queen at the behest of the Prime Minister), ostensibly on grounds of service to the country. This service may be political but need not be so: they have been awarded to prominent sportsmen and businessmen.

Historically, the Lords’ consent was needed to pass a Bill. However, since the Parliament Acts of 1911 and 1949, this is no longer necessary. Now the Lords can delay a Bill for up to a year, but they cannot prevent the Commons and monarch from turning it into an Act.

The Judiciary

The judiciary is the branch of government responsible for judging legal disputes and interpreting the law. In the past, senior judges sat in the House of Lords as the Law Lords, though they did not vote on legislation as a matter of convention. The Appellate Committee of the House of Lords was the highest court of appeal in the land. The head of the judiciary was the Lord Chancellor (who headed the Court of Chancery and then the Chancery Division of the High Court). He also served as Speaker of the House of Lords, responsible for chairing debates in that chamber. That such an overlap between the judiciary and legislature persisted so long in our country speaks to the respect the other branches of government and the people placed in the probity of our judges. The monarch was nominally the head of the judiciary and was nominally responsible for appointing judges, thus blurring the distinction between the judiciary and the executive also.

Nevertheless, this eventually changed. Following the lead of the USA, the UK has sought to bring a greater separation between the judiciary and the other branches of government. Judges are now appointed by the Judicial Appointments Committee (JAC) and, as before the reform, they hold office “during good behaviour”, which in practice means for life. A majority in the House of Commons is necessary for the removal of a judge. The Appellate Committee of the House of Lords has ended and the Law Lords were reconstituted as the Supreme Court. The Chancellor is no longer the Speaker of the House of Lords (they elect one from among themselves) and he no longer heads the judiciary. The judiciary is now headed by the Lord Chief Justice and overseen by the Ministry of Justice. Peerages are not awarded as a matter of course to senior judges, but they are allowed to be addressed with appropriate titles that reflect their seniority and service.

Judicial Review

Judicial review is the process by which the judiciary checks the compatibility of actions by the executive and laws passed by the legislature with our constitution. The judiciary may not initiate judicial review of its own accord: a case must be brought by an applicant with sufficient standing. The venue for judicial review hearings is the High Court, not the Supreme Court. Judicial review is fundamentally a common law process, created by the courts, not by statute. The High Court develops its own jurisprudence and precedent and its own causes of action. The High Court in this context is a panel of judges, who may decide unanimously or by majority. The opinion of a minority member is known, as in other panel cases, as a dissenting opinion.

The court generally tries to restrict its judgments to matters within its competence. It avoids pronouncements that would compromise national security or concern areas of technical skill beyond the judicial remit. Judicial review in the cases of executive action is concerned not with what decision was made but with how the decision was made: the judges are not supposed to rule on whether a decision was good or not. Their concern in these cases is that a decision was made fairly, freely, and with due regard to relevant, reasonable considerations.

In the case of human rights law. The judiciary is empowered by statute to issue a declaration of incompatibility. This means that it declares a statute incompatible with human rights. It does not mean that the statute is repealed, amended, or suspended. These are matters for Parliament and the ministers to decide, and they cannot be compelled by the judiciary to do so. Nevertheless, in such cases there will be political pressure to do so.