The Constitution of the United Kingdom

A Contextual Analysis

Peter Leyland

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509945559
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Praise for the previous editions
"[A] slim guide to the constitution of the United Kingdom that is both highly readable and impressively thorough. It deserves a place on undergraduate reading lists … [students] will certainly find it worth their while' Cambridge Law Journal "[The] written style is admirably clear, conversational and free from jargon … It will be of immense interest to anybody with a general interest in UK law, politics and history." Times Higher Education This timely new edition addresses the many constitutional changes that have arisen since 2016 (including those brought about by Brexit and the COVID-19 pandemic) whilst retaining its hallmark features of clarity and concision. Adopting a thematic approach, it discusses questions of history, sources and conventions, the role of the Crown, Parliament and the electoral system, government and the executive, the judiciary, and the territorial distribution of power. In addition, it offers analysis of the evolution of the UK's historic non-codified constitution, its strengths and perceived weaknesses, and of reform initiatives. Engaging with the central issues in play as the UK enters a new chapter, it explores the impact on devolved government, the principle of sovereignty, the role of the courts and parliamentary reform. As well as providing a contextual and authoritative overview of the principles, doctrines and institutions that underpin the elusive constitution, this study will allow students of law and politics, both from the UK and abroad, to develop an informed view of how it actually works.

1

UK Constitution

Context and History

Democracy – Freedom of Expression – Mass Media – Constitutionalism, Good Governance – History – Monarchy – Parliament – United Kingdom – Empire – Commonwealth – Europe

INTRODUCTION

Our discussion begins by explaining why the unwritten UK constitution is unusual. In general the constitution is the text that sets out the fundamental and superior law of the nation. It not only describes the main institutions of the state, but also provides a framework of basic rules that determine the relationship between these institutions. In addition, it will usually provide in outline the legal and non-legal rules and procedures that define the system of central and local government. At the same time, the constitution normally places limits on the exercise of power and sets out the rights and duties of individual citizens. Tom Paine explained that it is the property of a nation, and not of those who exercise the government: ‘A constitution is a thing antecedent to the government, and always distinct there from.’¹ In nearly every other state the term constitution refers to this document (or series of documents) that contains this fundamental and superior law of the nation. The constitution of the UK is unwritten/uncodified in the sense that it is not contained in any single document. Furthermore, a codified constitution, as a form of higher order law, will generally be entrenched. A specified procedural device (eg a referendum or a higher majority plus federal ratification) must be followed to introduce changes, which makes a codified constitution relatively difficult to amend. In contrast to most others, the UK constitution is not entrenched. In consequence, it is relatively flexible, in the sense that any aspect can be changed by way of ordinary legislation and certain aspects can be modified by convention (discussed in Chapter 2).

The next point to stress is that constitutions will often be designed to deliver a particular system of government, and, at the same time, respond to prevailing local conditions. The founding fathers who drafted the constitution of the United States were keen to include strong institutional inhibitions on the exercise of anything approximating to kingly powers, while also creating a federation with a territorial division of authority between central government and state governments. On the other hand, the Soviet constitutions in Russia under Lenin and Stalin following the revolution in 1917 were conceived to deliver an ideological commitment to a socialist state of workers and peasants. The capitalist system of economics and individual property is expressly rejected in the text of these constitutions. We might compare these to the South African constitution, which was drafted following a protracted struggle to overturn a previous regime based on apartheid. The 1996 constitution seeks to achieve reconciliation between ethnic groups, and it is intended to create a democratic state committed to non-racialism and non-sexism and to the advancement of human rights and freedoms and the achievement of equality. The UK lacks a written constitution which has been custom-built to achieve particular goals,² but rather the nation has acquired in piecemeal fashion over the span of several centuries a constitution which supports a liberal democratic system of government.

CONSTITUTIONAL CONTEXTS

What is Liberal Democracy?

Now, we need to be clear about what is meant by liberal democracy.³ In setting out a model of democracy Professor Sunstein explains that ‘the central goal of a constitution is to create the preconditions for a well functioning democratic order, one in which citizens are genuinely able to govern themselves’,⁴ and he advocates a form of deliberative democracy which is marked out by political accountability and a high degree of reflectiveness and a general commitment to reason giving. More commonly, the term liberal democracy refers to the fact that power and legitimacy are reached through the indirect consent of the population as a whole. The consent to be governed is achieved after an electoral process delivers representatives to a Parliament. The majority in Parliament vote for laws which, to some extent at least, reflect the will of the majority. However, when looking at constitutional systems, it would be a mistake to believe that a system of majority rule, in itself, satisfies the credentials of liberal democracy. This is because, while it may be accepted that in some matters the will of the majority should prevail, in regard to others, a crucial feature of ‘liberal democracy’ is that there are limitations on majority rule. For example, the interests of minorities must always be protected to some degree. In practical terms, this means that political parties may offer policy choices to the electorate regarding say, higher or lower levels of taxation, the role of the public sector, and particular policies to pursue in education, health, social services, and law and order. However, the constitutional arrangements in a liberal democratic system must prevent the tyranny of the majority from prevailing by establishing strong constitutional guarantees. This is normally achieved in the field of civil liberties by means of a charter or bill of rights, which will set out the extent of rights which will be protected (eg freedom of speech and religion, freedom to demonstrate, freedom from arbitrary arrest, and so on). However, the UK with its uncodified constitution relied on ordinary laws and a tradition of restraint demonstrated by the executive organs of the state, until the Human Rights Act 1998 (HRA 1998) incorporated the European Convention on Human Rights (ECHR) into domestic law.

The UK Constitution, Constitutionalism, and Good Governance

The UK constitution has evolved in the sense that the rules which have come into being have been accumulated as a response to circumstances, and they can be regarded as the residue of a historical process with particular laws and conventions incorporated following significant events. Apart from describing institutions and procedures, the starting point in drafting a codified constitution or modifying an existing constitution is to come as close as possible to reaching a consensus on any limits imposed on the majority. As we observed above, each constitution reconciles these issues in its own individual fashion. Unlike most other constitutions, the UK constitution has not been designed according to an ideology or theory to deliver a particular system of government. Despite lacking any guiding principle, the UK system could also be said to display the characteristics of what might be described as constitutionalism.⁵

The vast majority of constitutions set out a framework of rules which, if applied and interpreted in the spirit intended, would produce if not a version of liberal democracy, at least conditions of good governance. The point to stress is that the constitution needs to be supported by mechanisms which allow the commitments in the text to be implemented. In many constitutions there is a significant gulf between the statement in the constitution and actual compliance. In the majority of cases it is achieving substantial conformity with the rules that becomes the crucial issue. Indeed, as one well-known commentator puts it: ‘The fundamental notion of the Rechtsstaat or the rule of law was … not conceived out of the blue and introduced without resistance. It was, in fact, the fruit of political conflict and scholarly disputes stretching over many centuries.’⁶ Rather than compliance with strict constitutional rules, in the UK the interpretation of some of the important constitutional conventions may arise as a matter of debate and controversy (see discussion of conventions in Chapter 2 and of individual ministerial responsibility in Chapter 6).

The first point is to note that any exercise of political power will be bounded by a system of higher order rules which will usually be set out clearly in the constitution. The second point is to recognise what these rules are likely to concern. For example, in virtually every case these rules will specify the institutional framework for passing valid legislation, and a distinction will often be drawn between what can be the permissible content of ordinary legislation as opposed to law relating to the constitution itself. Further, the higher order rules contained in the constitution will outline the method for the formation of the government, and the rules may place limits on the action taken by the executive organs of the state, including the civil service and the police, in the implementation of law. Finally, the constitution may provide that a court (often a constitutional court) has the capacity to invalidate legislation or executive action which fails to comply with the law of the constitution. Constitutionalism is defined in terms of adherence to the rules and to the spirit of the rules. As Professor De Smith has observed: ‘[this] becomes a living reality to the extent that these rules curb arbitrariness of discretion and are in fact observed by the wielders of political power.’⁷

A genuine constitution for reformers in the eighteenth century, such as Tom Paine, restrained and regulated the exercise of absolute power. Apart from its positive aspects, namely dealing with the generation and organisation of power, a constitution may be taken to comprise a series of devices designed to curb discretionary or unlimited power. It seeks to establish different forms of accountability⁸ not simply through a system of freely elected government, but by placing restrictions on the power of the majority. This accountability is reliant on transparency, and it is acted out in a number of familiar ways:⁹ an obligation for the government to be responsible to the elected Parliament; legal limits established by the courts (often including a constitutional court) on the exercise of public power; formal financial accountability in public affairs; accountability through contractual agreement where public services are provided by private organisations; and, additionally, accountability through the intervention of constitutional oversight bodies such as parliamentary select committees, ombudsmen, and courts (discussed in later chapters).

Moreover, the constitution also results in further ground rules in the form of laws, codes of practice, and conventions being adopted to ensure fair play at every level.¹⁰ Finally, an equally significant characteristic of constitutionalism is a degree of self-imposed restraint which operates beyond the text of the constitution and its attendant rules, especially on the part of political actors and state officials. The point to stress here is that all nations have a constitution of some kind, but constitutionalism is only established in a true sense where political behaviour is actually contained within certain boundaries. In the first place, the rules need to embody a defensible constitutional morality which accords with principles of good governance¹¹ but the constitution also represents a sufficiently widely accepted political settlement. In the second place, there must be a general adherence at all levels to the constitutional rules and the wider body of law and conventions associated with them. In the UK, as we will soon discover, there is a debate about the adequacy of constitutional safeguards, especially in relation to the exercise of executive power, but although the rules are often embodied in informal conventions, there is generally a high degree of compliance by the main political actors.

Democracy, Accountability, and the Digital World

At the outset, before proceeding to map the sources of the uncodified UK constitution in Chapter 2, it is useful to identify how the core themes of fitness for purpose and constitutional accountability can be identified as of central importance to this study. The crisis precipitated by Covid-19 highlights the multi-dimensional challenges to the foundations of the democratic constitution as the effect has been discernible at many different levels relating to politics, law, and governance. From a citizen perspective the pandemic exercised a pervasive grip on ordinary lives. It resulted in an almost instantaneous transformation in the relationship between the citizen and the administrative state in the delivery of services. The expectation of direct personal contact was replaced by an entirely different, often ‘virtual’ experience. In the NH...