The British Constitution

What is a Constitution?

According to the OED, a constitution is a "the system of laws and basic principles that a state, a country or an organization is governed by" (OED). So it is a body of written rules that regulate the relation of the state and its individual subject, the rights and responsibilities, plus the state structure (government, parliament, courts).

The Uniqueness of the "British Constitution"

Special about the so-called "British Constitution" is that there is no single document which has the word constitution upon it (see: Parlamentary Souvereignty). However, Walter Bagehot already used the term in his famous work The English Constitution (1867). Unlike the German Grundgesetz or the Constitution of the United States of America (1787), the British version is rather made up of several laws and unwritten customs and a set of various sources from several ages [1,2], e.g.:

• Statutes
• Conventions
• Exercises of the royal prerogative
• The Common law
• European law
• International law
• Treaties
• Authorities and precedents

Benevolent critics such as Walter Bagehot interpret the British constitutional monarchy as some kind of "organic" "product of evolution rather than design" (Bagehot) , developed gradually of the necessity to maintain security and stability.[3,6]. Or as Jack Straw (MP, Lord Chancellor, Secretary of Justice) says: "a product of many centuries of change, some revolutionary but most gradual and evolutionary...", "the British people have developed an innate understanding of the rights which has come from centuries-old tradition – its in our cultural DNA". A history of around 800 years [3]. Others like Tom Nairn or Christopher Hitchens are in favour of a written constitution in order to get rid of the "ancien regime" of elitist hegemony.

Pros and Cons

Whereas in other countries one can refer to a central document, the British use precedent cases as some kind of model interpretation. The advantage is that the British set of sources allow judicial and political flexibility. Bagehot stresses this trait because it allows pragmatic political decision making according to arisen situations and provides a legal mechanism adoptable to new developments [6]. The disadvantage is that it also implies uncertainty. Therefore politicians like Mr. Straw favour a "New British Constitution" via a Bill of Rights and Responsibilities that give the British a better understanding of what their "Constitution" looks like, what their rights and responsibilities as subjects are and how the political system works [4,5]. Up to now the problem of obscurity pointed out by Bagehot is still present and gets less attention than the Royals in terms of unifying symbol of national identity.

A History of several sources

Key Dates

• 1215 Magna Carta
• 1626 Charles I dismissed Parliament, then subsequently recalled it in order to raise taxes
• 1628 Parliament's Petition of Right to the king to protect subjects from further taxation unauthorised by Parliament
• 1629 Three Resolutions of Parliament:

1. Condemn any change to the established religion
2. Condemn taxation without parliament's authority
3. Merchants paying 'illegal' taxes betrayed the Liberty of England

• 1642 Civil War breaks out
• 1646 Charles I surrenders
• 1649 Parliament gets right to make laws without the king's approval; Charles I executed; Parliament *abolishes the monarchy; Cromwell chairs the New English Commonwealth
• 1653 Oliver Cromwell is elected Lord Protector of the Commonwealth
• 1660 Restoration: Charles II on throne
• 1688/1689 James II overthrown in the 'Glorious Revolution'; Enactment of the Bill of Rights
• 1707 Union with Scotland
• 1800 Union with Ireland
• 1832 (Also 1867, 1872) Reform Acts-extended voting rights and established secret ballot
• 1911 Parliament Act, 1918 Reform Act-ended property qualifications for men
• 1921 Anglo-Irish Treaty signed, removes 26 Counties of Irish Free State from UK
• 1928 Reform Act-gave equal voting rights to women
• 1948 Parliament Act
• 1972 European Communities Act
• 1998 Human Rights Act; Scotland Act; Government of Wales Act
• 1999 House of Lords Act; Greater London Act, 2000 Freedom of Information Act
• 2005 Constitutional Reform Act
• 2006 Government of Wales Act

The "British Constitution" covers several types of sources such as:

Statutes

(laws passed by parliament (souvereign power), highest laws of the country), e.g.:

• Magna Charta (1215)

Magna Carta is said to be the beginning of the legal, governmental and social system of Western culture. Balfour sees in it the “forefather” of the British and American Bills of Rights and consequently the model for all constitutions nowadays which, according to him, adopted parts of the “content, many provision and even some of its actual words.”[7] Nevertheless the document has a feudal origin and was designed to protect the interests and rights of powerful landowners and to stand up against the monarch and the aspect of liberty only referred to the rights of the landowners. But most important is that via the creation of two councils of representatives of boroughs and the counties the foundation for the Houses of Lords and Commons was laid. Likewise to other documents from the set of sources underwent reinterpretation and changes. For example, in the 18th century Magna Carta was used in the line of argumentation by parliament as a precedent to demand their traditional rights and rightful liberties from George III [2].

• Bill of Rights (1689)

The 17th century meant some further steps towards the current constitutional system. After the English Civil War (1642-1649) and the conflict between monarch, ending with the execution of Charles I (1649), the lord chancellor-ship of Oliver Cromwell and the Restoration of the monarchy by Charles II, a compromise was forged. The Bill of Rights meant a sharing of powers between the parliament and monarch:

• • Parliament should be frequently summoned and that there should be free elections (articles 13 and 8)
  • Members and Peers should be able to speak and act freely in Parliament (article 9)
  • No armies should be raised in peacetime and no taxes levied, without the authority of parliament(articles 4 and 6)
  • Laws should not be dispensed with or suspended without the consent of parliament (articles 1 and 2).
  • That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (article 10)

• Further legislation are The Reform Acts (1832, 1867, 1872, 1918, 1928), the Human Rights Acts (1998) and the Scotland Act (1998)

Conventions

• Unwritten practises and understanding influencing the way the government works -> traditions, e.g.:
• The Cabinet itself is established by convention—every government ultimately needs a central decision-making body
• The Salisbury-Addison convention: Lords will not obstruct the passage of legislation set out in the government’s election manifesto
• The Sewell convention: Westminster will not legislate on a matter devolved to Scotland without first seeking the consent of the Scottish Parliament

Royal Prerogatives:

• e.g. the summoning, proroguing, and dissolving of Parliament; the appointment of ministers, peers

The Common Law

• Practical, everyday usage of laws, developed by courts and judges in cases -> precedent

European Law

• Since the European Community Act in 1972

International Law

• International courts, tribunals, UN, treaties, customs, diplomacy

Authorities and precedents

As said, politicians and law must often consult various scholars and former cases of law interpretation to make their decisions, e.g. Walter Bagehot The English Constitution (1867) [2,4] [unclear what is meant by this passage]

Central Principles

Representative Democracy

Once the monarch was the souvereign which meant that he alone ruled the country. But over the years more and more monarchical powers were passed on to the government (the ministers and the lord chancellor/prime minister). Thus it came to a split of powers: The Queen reigns, but Parliament and the government rule. The general idea is that the Members of Parliament represent the people who voted for them in an election. [1,2]

The Rule of Law

Today the law says that everyone is equal involving:

• Legality (all state actions must be authorised; law should not be arbitrary)
• Certainty (laws should be clear, certain, predictable)
• Consistency (the law should be applied equally to all; no one is above the law)
• Accountability (laws are necessary to provide a standard to measure the actions of a state)
• Due process and access to justice (everyone should get a fair trial before an independent and impartial tribunal) [2]

Liberties: See Rights of citizens

The Separation of Powers

The political power in GB is similar to the USA distributed into three branches to protect against misuse of power and concentration of power in one branch:

• The executive (comprising the Government, the Monarch and the Civil Service) is the body

which executes the law; it proposes and enforces the law; it governs the country on a day-to- day basis

• The legislature is the body devoted to making and changing law
• The judiciary is the body which interprets the law.

But one should point out that in Britain the legislature and executive branches are joined in the institution of the cabinet. Some argue that this makes the British government more effective, whereas others point out the danger of too much power in one branch. [1,2] However, one has to point out that the regular replacement due to elections and a watchful public that since Bagehot's days has become increasingly important should be able to control this. In the 19th century, with the first mass-media and a larger public political topics gradually even reached the lower classes. Thus the public has become the powerful institution that Bagehot wished for when he spoke of a Despotic Democracy: The politician is forced to act in favour of the major public interests and therefore, according to this philosophy, in favour for the nation. In regular elections and a powerful public Bagehot also saw the possibility to replace a leader quickly in times of crisis so that only the most effective and skilled people govern the country. In this point might lie a hidden criticism of inherited rule. [6]

Rights of Citizens

The tradition of recognised liberties to its citizens has a long tradition. As mentioned, even the Magna Carta contained a concept of liberty, although this should not be confused with the modern one, since the definition who is recognized as citizen opened over the time. In the beginning it only meant people with land, people in dependence had no liberty rights. The subject had to obey the king, the farmer the landlord, the servant the master, the slave the owner, the apprentice the employer, the wife the husband, the child the parents etc. This goes back to the Medieval and Early Modern hierarchical World Picture. 1215 there still was the lex terrae (the Law of the Land). Later on the notion of liberty began to change. In a later yearbook [6,7] it is said that

"No freeman shall be taken and imprisoned or distract of any free tenement or of his liberties or free customs, or enslaved or exiled, ... Nor will we go upon home nor send upon him, except by the lawful judgement of his peers and by the law of his land. To no one will we sell, to no one will we delay right or justice." [7: p.68]

Around 1628 the idea of a liber homo had already been established: the equal right to any free man and instead of lex terrae a Common Law was used in trial. Many of today's rights and liberties are now collected in the Human Rights Act 1998 incorporating European Conventions and Human Rights:

• the right to life
• freedom from torture and degrading treatment
• freedom from slavery and forced labour
• the right to liberty
• the right to a fair trial
• the right not to be punished for something which wasn't a crime when it was done
• the right to respect for private and family life
• freedom of thought, conscience and religion, and freedom to express your beliefs
• freedom of expression
• freedom of assembly and association
• the right to marry and to start a family
• the right not to be discriminated against in respect of these rights and freedoms
• the right to peaceful enjoyment of your property
• the right to an education
• the right to participate in free elections
• the right not to be subjected to the death penalty

People also have a right to access information held about them by many public bodies under the Data Protection Act 1998. Under the Freedom of Information Act 2000 there is also a right to ask for information held by a public authority. [2]

Parliamentary Sovereignty

This principle can be summed up as following: The Monarch reigns and Parliament rules. As all the other principles it developed out of British history. The key principles are:

• No Parliament could bind a future parliament which means each law can be changed and not the Parliament but the people who voted it and whom it shall represent are the sovereign.
• No distinction between "ordinary" and "higher law", all laws can be changed by the current Parliament and only by it alone. No other branch of power has the right to do so. Neither the monarch nor the Cabinet or the Judiciary.

A crucial consequence of this is that there is no written constitution or Bill of Rights as the USA or Germany has that in contrast to the British set of laws are rather fixed.[1,2]

Sources

[1]Turpin, Colin and Adam Tompkins. British government and the Constitution. 6th ed. Cambridge: Cambridge University Press, 2007: 5-9, 33-42.

[2]“What Is The British Constitution?” Re-Constitution. 6. July. 2010 <http://www.re-constitution.org.uk/discover-the-facts/what-is-the-british-constitution/>[1]

[3]Straw, Jack. “Modernising the Magna Carta.” 2008. Ministry of Justice. 6.July 2010 <http://www.justice.gov.uk/news/sp130208.htm>[2]

[5]Straw, Jack. “Constitutional change and the future of parliamentary democracy.” 2009. Ministry of Justice. 6.July 2010 <http://www.justice.gov.uk/news/speech241109a.htm>[3]

[6]Bagehot. Walter. Die Englische Verfassung. Ed./Trans. Klaus Streifhau. Berlin: Luchterhand. 1971, 1-38. [please! in the English original!!]

[7]Faith, Thompson. Magna Carta. London: Oxford University Press, 1950: V, 3-10, 33,-69.--Karsten 19:38, 9 July 2010 (UTC)