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 (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 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

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 the Parliament:

One Condemn any change to the established religion
Two Condemn taxation without parliament's authority
Three 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
1653Oliver Cromwell is elected Lord Protector of the Commonwealth
1660 Restoration: Charles II back on throne
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 the secret ballot
1911 Parliament Act, 1918 Reform Act-ended property qualifications for men
1921Anglo-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 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)
Further status added later on 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 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 -> president

European Law

Since the European Community Act in 1972

International Law

Interantional 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)

Central Principles

Representative Democracy

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

The Rule of Law

Today the law says that everone is equal involving:

Legality (all state actions must be authorised; law should not be arbitrary)
Certainty (laws should be clear, certain, predictable)
Consistence (the law sholud be applied equal to all; no one is above the law)
Accountability (laws are nececcessary 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 conventration of power in one branch:

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

which executes the law—it proposes and enforces the law; it governs the country on a dayto- 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 legilsture and executive branches are joint in the institution of the cabinet. Some argue that this makes the British goverment more effective, whereas point out the danger of too much power in one branch. [1,2] However, one has to point out that the regular replacment 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 are broader informant public political topics gradually even reached the lower classes. Thus the public has become the powerful instistution that Bagehot wished for when he spoke of an Despotic Democracy: The politician is forced to act in favour of the major public interests and therfore, according to this philisophy, to in favour for the nation. In regular elections and a powerful public Bagehot also saw the possiblity 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 recongized liberties to its citizens has a long tradition. As mentioned even the Magan Carta contained a concept of liberty, although this should not be confused with the modern one, since the defenition who is recognized as citizen opened over the time. In the beginning it only meant people with lands. Quite contrary poeple in dependence had no liberty rights. The subject to the king, the farmer had to obey to the landlord, the servant to the master, the slave to the owner, the apprentice the employer, the wife to the husband, the child to the parents etc. This goes back to Medieval hierachical and later hierachical Elizabethan World Picture. 1215 we still had the lex terrare (the Law of the Land). Later on the notion of liberty began to change. In a later yearbook [6] 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 hom 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." [6: p.68]

Around 1628 the idea of an liber home had already been established: the equal right to any free man and instead of lex terrare a Common Law was used in trial. Many of today's rights and liberties are now collected 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 reign and the Parliament rules. As all the other pirnciples it developed out of Brtítish history. The key principle behind it is:

No Parliament could bind a future parliament whic means each law can be changed and that the not the Parliament but the people who voted it and whom it shall represent are the souvereign.
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 Judictiary. An 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 and not intended to be changed. [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.