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. However, Walter Bagehot already used the term in his famous work The English Constitution. 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 a certain security.[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 muster-interpretation of there muddle of laws. The advantage is that the British set of sources allow judicial and political flexibility. Bagehot stresses this trait because it allows a pragmatical 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 as 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 right and responsibility as subject are and how the political sytsem works [2,3]. Up to now the problem of obscurity pointed out by Bagehot is still present and gets less attention as the Royals in terms of unifying symbol of national identity.

A History of several sources

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

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

Magna Charta (1215)

The Magna Carta is said to be the beginning of the legal, govermental and social system of the 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 “contend, 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 leibrty only refered 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 the parliament as a precedent to deamnd their traditional rights and rigthful liberties from George III [2].

Bill of Rights (1689)

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

Conventions (unwritten practises and understanding influencing the way the goveremnt works -> tradions), 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 Commen Law (practical, everday usage of laws, developed by courts and judges in casese -> presidents)

• European Law (since the European Community Act in 1972)

• International Law (interantional courts, tribunals, UN, treaties, customs, diplomacy)

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.

[8]“Judiciary.” Re-Constitution. 6. July. 2010 <http://www.re-constitution.org.uk/discover-the-facts/judiciary#facts_5>[4]