Due to the absence of a singular, comprehensive document, the UK's constitutional provisions are found across various sources, encompassing both legal statutes and non-legal guidelines, which have emerged at different times throughout history. These sources comprise statutes passed by Parliament, principles established by common law, and traditional practices known as constitutional conventions. Additionally, the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, serves as a legal source.
From 1973 until the 31st of January 2020, the UK was part of the European Union ('EU'). In this period, EU legislation, under the auspices of the European Communities Act 1972, became a key element of UK law.
Following the UK's exit from the EU, there was an initial transitional phase until the 31st of December 2020, wherein EU laws were still applicable within the UK.
Subsequent to this transition, although most EU legislation has been retained in UK law, it is now referred to as 'retained EU law' as per the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020.
Adherence to the Rule of Law
The principle of the rule of law is a cornerstone of the UK constitution, mandating that laws be enforced impartially, that governmental actions are grounded in law, and that laws should not be retrospective in their application.
The judiciary plays a crucial role in maintaining this principle.
Absence of Constitutional Entrenchment and the Principle of Parliamentary Supremacy
Unlike the situation in nations with a formalised constitution, where the constitution is typically 'entrenched' and holds precedence as the highest law, the UK's constitution does not have this entrenched status. In countries with entrenched constitutions, any ordinary statutes that conflict with the constitution can be invalidated or overturned.
By contrast, the UK's legal hierarchy places Acts of Parliament at the apex. Due to the absence of an entrenched constitution, the ultimate authority is vested in Parliament itself—a concept referred to as parliamentary sovereignty or supremacy.
From this principle of parliamentary sovereignty, it follows that amending the constitution legally requires only a conventional Act of Parliament passed by a simple majority in both the House of Commons and the House of Lords.
Consequently, numerous constitutional rules are embodied within Acts of Parliament which, in principle, can be modified or repealed like any other law.
Examples of Acts of Parliament with constitutional implications include the following, many of which are discussed in later chapters.
Magna Carta 1297—guaranteed certain legal protections, including the right to jury trial;
Bill of Rights 1689—asserted the sovereignty of Parliament over the Monarch;
Act of Union 1706—created the Union of Scotland and England, governed by one Parliament based at Westminster;
Human Rights Act 1998—incorporated rights protected by the European Convention on Human Rights into UK law;
Constitutional Reform Act 2005—created the Supreme Court and the procedure for appointments to the judiciary;
Fixed-term Parliaments Act 2011—sets out in which circumstances a general election is held;
Succession to the Crown Act 2012—modernised the line of succession to the throne;
European Union (Notification of Withdrawal) Act 2017—enabled the government to notify the EU of the UK's intention to withdraw from the European Union; and
European Union (Withdrawal) Act 2018—makes provision for the retention of EU law in UK law as ‘retained EU law’.
Judicial Inability to Nullify Legislation
The UK constitution's lack of a formal entrenched status and the enduring doctrine of parliamentary sovereignty result in the courts having no authority to nullify an Act of Parliament on the grounds of it being 'unconstitutional'.
Issuing a Declaration of Incompatibility
The judiciary's approach to challenging legislation comes in the form of issuing a 'declaration of incompatibility'. Such a declaration indicates that a piece of legislation is not aligned with the rights safeguarded under the Human Rights Act 1998.
It's important to note that this declaration doesn't immediately alter the legal standing of the legislation in question; instead, it signals to Parliament that there may be a need for legislative adjustment.
The Role of Judiciary
Interpretation of Legislation
Courts in the UK are often called upon to interpret constitutional legislation, such as Acts of Parliament.
When the relationship between two Acts or the extent of powers granted by legislation is ambiguous, it is the role of the courts to clarify and provide a decisive interpretation.
A prime example of this is seen in the case of R (Jackson) v Attorney General 2005 UKHL 56, where it was determined that Acts of Parliament passed under the Parliament Acts 1911 to 1949 hold the same legal weight as Acts approved by the traditional legislative process, including the consent of the House of Lords.
If Parliament finds the judicial interpretation of legislation unsatisfactory, it retains the power to revise the law to clarify its intent and content.
Development of Common Law
Apart from statutory interpretation, the judiciary also shapes the constitution through the development of common law, which comprises legal principles established by court decisions.
The judiciary's role includes the articulation, refinement, and expansion of these principles, one of the most significant being the doctrines underpinning judicial review, further detailed later in this book.
Monarchy and the Royal Prerogative
The UK is characterised as a constitutional monarchy, which implies that the Monarch's role and powers are defined by the constitution. Although the Monarch is legally endowed with significant powers, these are largely ceremonial in practice, with real political power being exercised by elected officials.
The royal prerogative, an element of common law, comprises the powers traditionally held by the Crown.
While 'Royal' harkens back to when the Monarch directly exerted these powers, today, they are predominantly executed by the government. Although rooted in common law, the royal prerogative can be curtailed or modified by an Act of Parliament.
Over time, many prerogative powers have been superseded by statutory provisions. The details and current status of the royal prerogative will be discussed more thoroughly in later sections.
The Ram Doctrine and 'Third Source' Powers
The Ram Doctrine, sometimes referred to as 'Third Source' powers, recognises governmental powers that exist beyond statutory authority and the royal prerogative.
These are incidental powers assumed by the government to manage the day-to-day functions that are not specifically outlined by statute or by royal prerogative. These powers are essential for the government to perform its routine duties and are considered inherent to the operation of a sovereign government.
The Role of Constitutional Conventions
Constitutional conventions constitute a fundamental, though unwritten, aspect of the UK's constitutional framework. These conventions are practices that, although not legally enforceable, have become an accepted part of political operations. They serve to fill the gaps where neither statute nor case law provides guidance.
For example, while the legal authority to appoint a Prime Minister resides with the Monarch, in practice, this is directed by a set of constitutional conventions which dictate that the Monarch must appoint the leader of the political party that has the confidence of the House of Commons.
These conventions emerge from historical precedents and are sustained by a sense of obligation to uphold them and the understanding that there is a constitutional rationale behind these practices. They are adhered to largely due to the political repercussions that may arise from not doing so.
Nevertheless, debates may occur over whether a convention is relevant to a particular circumstance, or if it has been adhered to or breached, as such matters can often be subject to interpretation and political judgement.
For instance, the convention that the House of Lords should not block a budget passed by the House of Commons is a principle established through tradition rather than law. This convention was solidified after the constitutional crisis of 1911, when the Lords rejected the People's Budget proposed by the Commons, leading to the Parliament Act 1911 which restricted the Lords' power to veto money bills.
In the contemporary setting, imagine a situation where the House of Commons passes a controversial budget that significantly raises taxes. Although the House of Lords might strongly disagree with the content of the budget and might technically have the power to reject it, they would typically abstain from doing so because of the constitutional convention that dictates they should not obstruct the Commons' control over financial legislation.
This reflects the respect for the democratic principle that elected representatives in the Commons have the final say on financial matters.
Other Notable Constitutional Conventions:
Ministerial Accountability: There is a convention that government ministers must resign if they are personally responsible for serious errors or misconduct.
Legislative Consent: The UK Parliament generally does not legislate on matters that have been devolved to Scotland, Wales, or Northern Ireland without the consent of the respective devolved legislature, adhering to the Sewel Convention.
Prime Ministerial Advice: It is customary for the Monarch to act on the advice of the Prime Minister in government matters.
Ministerial Appointments: Ministers typically must be members of one of the two Houses of Parliament and are appointed by the Monarch on the recommendation of the Prime Minister.
Parliamentary Accountability: The government owes its accountability to Parliament, with ministers required to appear in Parliament, respond to questions, and participate in debates.
These conventions are not codified but are documented and explained in various government documents such as the Cabinet Manual and the Ministerial Code, which serve as operational guides for members of the government.
Devolution and the Union State
The United Kingdom, while retaining parliamentary sovereignty at its core, has evolved into a state that practises devolution, delegating powers to Scotland, Wales, and Northern Ireland. This devolution is asymmetric, with each of the nations having different scopes of power.
England, lacking its own legislature, is directly governed by the UK Parliament, where laws may be made that apply to England alone or to all four nations together.
Union State: The UK is composed of four nations but is not a federal system like the United States; instead, it remains a union state with a centralised government that has ultimate legislative authority.
Three Jurisdictions: England and Wales share a legal jurisdiction, while Scotland and Northern Ireland each have their own. UK Parliament has the authority to legislate for all three but typically respects the autonomy of devolved powers.
Devolved Powers: Devolution has provided Scotland, Wales, and Northern Ireland with their own legislative bodies and varying degrees of autonomy to make decisions on local matters, such as education, health, and transportation.
The relationship between the centralised UK government and the devolved administrations is dynamic and has been subject to political negotiations, particularly in light of Brexit and other constitutional debates.
Parliamentary Framework and Governance
The governance structure of the UK is anchored in a parliamentary system, distinct from a presidential system seen in countries like France or the USA.
Here's an overview of its features:
Integrated Leadership: The heads of the government, including the Prime Minister and other ministers, are drawn from the legislature, integrating the executive and legislative branches.
Legislative Dual Role: Members of Parliament (MPs) have a dual role: they are part of the legislative body and potentially part of the executive government if selected as ministers.
Government Formation: The government is formed as a result of parliamentary elections. The political party or coalition with a majority in the House of Commons typically forms the government, and its leader becomes the Prime Minister.
Prime Minister Selection: Unlike a presidential system where the head of government is elected directly by the people, the UK Prime Minister is usually the leader of the majority party in the House of Commons and is formally appointed by the Monarch.
Accountability to Parliament: The government is accountable to Parliament, especially the House of Commons. It must retain the confidence of the majority of MPs to stay in power. If it loses a vote of confidence, it may trigger a general election or the formation of a new government.
This parliamentary system promotes a different dynamic of political accountability and integration between the executive and legislative functions, often resulting in a system where policy and administration are more closely connected to legislative approval and support.