UK Constitution–Sources: Constitutional Conventions and Royal Prerogative

Moving on, we will look at Constitutional Conventions and Royal Prerogative.

Constitutional Conventions:

Constitutional conventions are an unwritten part part of the UK constitution. Nevertheless, they are important. Different theorists have put forward different definitions and theories as to what these conventions are and why they exist. Dicey, a legal philosopher, had this to say:

"understandings, habits or practices which, though they may regulate the … conduct of the several members of the sovereign power … are not in reality law at all since they are not enforced by the courts.

(Dicey cited in Barnett, 2011, p. 34)

This lack of enforcement by the courts comes in for a lot of criticism. Breaches may have other consequences such as civil unrest, or a political party failing at the polls.

Some known conventions are:

• The Prime Minister must be a member of the House of Commons
• Ministers are collectively responsible because of membership in the Cabinet. Collective responsibility means that ministers are expected to vote in favour of government decisions and to present a stable, functioning and united government. Failure to do so may mean resignation or removal.
• Ministers are individually responsible for their ministries. A minister can be forced to resign or removed for failures within their department, even if he is not personally involved. The final responsibility lies with him.

Conventions like these cannot be enforced in a court. The pressure to force resignation is political pressure. The Prime Minister can demand a resignation but it is still given voluntarily.

"The breach of a constitutional convention does not lead to legal redress but will lead to accusations of unconstitutional conduct."

[The Open University, 2014]

Royal Prerogative:

Royal prerogative powers are derived from those that were once exercised by the Monarch. With the rise in power of the Westminster Parliament, and the reduction of powers of the Monarch, these powers are now exercised by the government. However, they are still considered to be royal powers which remain with the Monarch of the day.

“Originally prerogative powers would have been exercised by the reigning monarch. However, over time a distinction has emerged between the monarch acting on his or her own capacity, and the powers possessed by the Monarch as head of state. In modern times, Government Ministers exercise the majority of the prerogative powers either in their own right or through the advice they provide to the Queen which she is bound constitutionally to follow. There have been calls to reform prerogative powers, chiefly because they are exercised without any parliamentary authority.”

(House of Commons, Briefing Paper SN/PC/03861, 2009, p. 1)

“The Westminster Parliament has no influence on the exercise of these powers but is able to influence political developments in the UK (domestic affairs) and abroad (foreign affairs).

Examples already mentioned of royal prerogative powers relating to foreign affairs are the power to declare war and to declare peace and the power to become part of treaties. At a national level the powers are used to pardon offenders, appoint ministers or summon Parliament.”

[The Open University, 2014]

Next: Constitutional Principles.

Exam Results

Yippee. Another pass with very good marks. Results released yesterday.

Moving on to W202: Contracts and Tort come October 1st.

UK Constitution–Sources: constitutional statutes

From the previous post, we saw that the UK Constitution has 4 main elements: constitutional statutes, constitutional conventions, royal prerogatives and constitutional principles. The first three are the sources of the constitution. This is what we will discuss now; constitutional principles will be discussed later on.

Constitutional Statutes:

As mentioned before, constitutional statutes represent the written part of the UK constitution. These are Acts of Westminster Parliament, which is the supreme law-making body of the UK (there is more to discuss on this later, however please make a note of this now). It is important to note that not every statute (Act of Parliament) is a constitutional statute; indeed it is very rare for an Act to be considered a constitutional statute. The difference between a constitutional statute in an ordinary statute has been clarified in the decision of: Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151.

Interestingly enough, in this case it was an argument over usage of metric weighting system and imperial weighting system that brought about the differentiation of ordinary and constitutional statutes. (As a side point, this case also established that EU law took precedence over national law due to the European Communities Act 1972 – you may want to remember this in future).

Lord Justice Laws established that there was ‘a hierarchy of Acts of Parliament’and gave the following explanation:

‘In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights’.

He also made a further observation: that ordinary statutes may be repealed by implication, but a constitutional statute “may not and neither can it be impliedly repealed or subjected to significant amendment by recourse to parliamentary statements during its enactment…”

© The Open University

Since Parliament is the supreme lawmaking body, it has the power to repeal or amend ordinary Acts of Parliament; however, constitutional statutes are much harder to amend or repeal as they have wider and significant impact on the constitution itself. Such is the significance that the government of the day tend to seek the support/opinion of the public before making changes to a constitutional statute, for example, by holding referendums. The UK held a referendum before joining the European Community (and recently held another on the choice of exiting the EU) because of the significance of the changes which would happen, not only to the society but also to the constitution.

Henry VIII clause:

Acts of Parliament sometimes contain a 'Henry VIII clause' which allows a nominated member of the executive to make amendments to legislation without the time and expense of making such a change in Parliament. In other words, a ‘Henry VIII clause’ allows secondary legislation to amend primary legislation. These clauses are often a cause of controversy.

An example would be The Immigration Act 2014, which allows the Secretary of State for the Home Department (SSHD) to make amendments under section 74.

Next: Constitutional Conventions

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]

Constitutions – what makes a constitution?

In the previous post, I presented an introduction to constitutions. In that previous post, readers were asked to look at the definitions of what a constitution is and think of some of the characteristics it may have.

Anthony King, Prof of Government at University of Essex, has written a book The British Constitution. Prof King says:

“‘Constitution’ refers:

to the set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” (King, 2009, pp. 3–4).

Note carefully that Prof King does NOT say that a constitution has to be written, a point I had asked readers to note in my previous post. So when the Encyclopaedia Britannica refers to ‘the fundamental written document…’ it is incorrect. While most countries may have a written constitution, it is not an absolute must, as the UK’s Constitution clearly shows; it is a mixture of Constitutional statutes, Constitutional conventions, Royal prerogative and Constitutional principles (eg the rule of law). More on this later. Countries that do not have completely written constitutions include the United Kingdom, Canada, Israel, New Zealand, and Saudi Arabia.

Prof King also points out:

“In the first place, a definition of this kind is wholly neutral in moral and political terms. It says nothing whatsoever about whether a given country’s constitution is good or bad or about whether it is worth commending or condemning. A country’s constitution is simply the set of rules and common understandings that currently exists. In this sense, almost every country has a constitution, and to say that a given country has a constitution is to say nothing else about that country save possibly that it is not a so-called ‘failed state’, a state whose governmental structures have effectively collapsed. Germany under the Nazis and the Soviet Union under the Communists both had constitutions on this definition, however abhorrent they may have been. Germany, Russia and Britain today also have constitutions in this sense, and whether their constitutions are admirable or otherwise is, in this context, neither here nor there.” (King, 2009, pp. 3–4).

So, Prof King describes the definition of a constitution, the set of rules and understandings that currently exists, as a neutral definition. It does not go any further to describe whether a constitution is good or bad.

“Even given this definition, there may, of course, be some debate about which are a country’s ‘most important’ rules and common understandings. There is bound to be, on the one hand, a core constitution, the changing of which everyone would agree was a real constitutional change, and, on the other hand, elements of a country’s political practices that might or might not be regarded as strictly constitutional and the changing of which might or might not therefore be regarded as constitutional change. The rule in the United Kingdom that free and fair elections should be held every few years is undoubtedly one of the country’s most important rules, as is the rule that the leader of the majority party in the House of Commons normally becomes prime minister. At the other end of the scale of importance are, for instance, the rule requiring the Speaker of the House of Commons to wear a black gown when presiding over the House and the rule (or is it merely a custom?) requiring someone called the Gentleman Usher of the Black Rod to knock at the door of the Commons chamber before summoning members of the Commons to hear the Queen’s Speech in the Lords chamber.” (King, 2009, pp. 3–4).

In the above, Prof King points out that a constitution has a ‘hierarchy’ of rules, with some having more importance than others. He cites the rules regarding regular, free and fair elections as one of the more important, or ‘core’, rules.

Next, the UK Constitution.