The UK Constitution

A constitution that is unwritten is known as an uncodified constitution.

The UK Constitution is describe by Barnett (2013, p. 3) as: monarchical, supreme, largely unwritten and flexible. Each of these are described below.

Monarchical:

The Queen (Monarch) is the Head of State and still has political and legal influence on the State. Most of the Monarch’s powers are actually exercised by the Government on behalf of the Queen, and later on we will look at what powers the Queen still retains.

The Queen. Photo linked from: http://pamelageller.com

Supreme:

The UK has a unitary constitution, meaning that there is one central government that exercises power and all other administrative divisions can only exercise powers that the central government chooses to devolve, and which the central government can vary at any time. In the UK, the power is vested in Westminster Parliament, which in turn passed legislation creating ‘subordinate’ legislatures: the National Assembly of Wales, the Scottish Parliament, and the Northern Ireland Assembly.

Of passing interest, the federal constitution divides power between a federal government and individual states which may have their own constitutions while there is also a national constitution. A notable example is the United States of America.

Largely unwritten:

“The UK’s constitution has developed over a number of centuries. It is generally recognised as having begun to develop in 1215 with the Magna Carta. Other key events that have followed include the Union with Wales (1535–1542), the Bill of Rights 1689, the Union with Scotland in 1706, the Reform Act 1928, the European Communities Act 1972, and the Human Rights Act 1998. You will explore the most recent of these later in the module. They are written documents but they are also supplemented by a number of unwritten conventions. The constitution of the UK has been developed on a piecemeal basis and is not contained in one complete document. Indeed, the constitution of the UK is uncodified.”

[The Open University, 2014]

The UK Constitution is considered to be ‘largely unwritten’ as some key aspects of it are not to be found in any Act of Parliament. The main elements of the Constitution are as follows:

Constitutional Statutes:

Constitutional Statutes are considered to be written documents that changed the constitution in a significant way, such as the European Communities Act 1972, and the Human Rights Act 1998. Tehy are also viewed as legal sources of the Constitution.

Constitutional conventions:

These are unwritten and seen as equivalent to constitutional statutes. They are the ‘traditional expectations created by informal rules of behaviour and rules of administration developed over centuries’. While they are not written, and therefore cannot be enforced through the courts, they are still seen to be the non-legal source of the UK constitution. It should be noted that they are respected and still function well.

Royal Prerogatives:

“The royal prerogative has its roots in history, from a time when the monarch had absolute power. Over time this diminished as Parliament gained more powers. Nowadays the royal prerogative is mostly used by the government. This power relates to:

• the legislature – the summoning and dissolution of parliament; the granting of royal assent to Bills
• the judicial system – pardoning of convicted offenders or remitting or reducing sentences
• foreign affairs – the making of treaties; the declaration of war
• armed forces – the sovereign is commander-in-chief of the armed forces
• appointments and honours – appointment of ministers; creation of peers and conferring of honours and decorations
• in times of emergency – requisitioning of ships (where compensation would be payable).

While the prerogative power is now generally exercised by the government, there are some prerogative powers (recognised under common law) which remain with the Crown. These are as follows:

• The appointment of a Prime Minister. The sovereign must appoint the person who is in the best position to receive the support of the majority in the House of Commons. This is generally the leader of the political party with the majority of members in the House of Commons.

• The giving of royal assent to legislation. In 1708 Queen Anne became the last monarch to refuse royal assent to a Bill passed by Parliament. Additionally, no monarchs since the sixteenth century have signed Bills themselves and Queen Victoria was the last to give royal assent in person in 1854.

The royal prerogative is seen as a legal source of the UK’s constitution as it forms part of common law.”

[The Open University, 2014]

Constitutional Principles:

The three constitutional principles are: the rule of law, parliamentary sovereignty, and the separation of powers, all of which underpin the UK’s constitutional framework.

Flexible:

“Generally, there are strict and precise rules as to how a national parliament can alter or reform the constitutional framework. Most states have a written document and look to it as the highest source of law, rights and power. For example, the constitution of the United States is regarded as the supreme law of the United States. To amend any aspect of the written document setting out the constitutional framework would require a compelling reason. There are normally rules in place to make the process of amendment slow. These allow time for reflection and recognise the important impact that any change may have. This creates an impression that the constitution is very static.

The UK’s constitution, however, is different. It is regarded as stable but also flexible as it is mainly unwritten. However, most of the constitutional statutes would be difficult to amend and it would be Parliament that decide when and how to do so.

Conventions, however, cannot be amended through a legislative process. They are mainly unwritten and change gradually over time as change itself becomes accepted. Conventions evolve over time. For example, if the electorate were to decide that the Prime Minister no longer has to be a member of the main political party in the House of Commons (a current constitutional convention), this constitutional convention would change because of the acceptance by the electorate of that fact. In this way the UK’s constitution can adapt to changes in society and evolve in response to those changes.”

[The Open University, 2014]